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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 >> Kent County Council, Re B (A Child) v the Mother & Ors [2004] EWHC 411 (Fam) (19 March 2004) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2004/411.html Cite as: [2004] 2 FLR 142, [2004] Lloyds Rep Med 303, [2004] EWHC 411 (Fam) |
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This judgment is being handed down in public on the strict understanding that
the anonymity of the children and the adult members of their family must be
strictly preserved. There is no restriction on the identification of any person
who is named in the judgment but attention is drawn to the terms of the
injunction set out in paragraph [154]
of the judgment. The Honourable Mr Justice Munby
FAMILY DIVISION
PRINCIPAL
REGISTRY
(In Public)
Strand, London, WC2A 2LL | ||
B e f o r e :
____________________
| In the Matter of B (A Child) And in the
Matter of the Children Act 1989 KENT COUNTY COUNCIL |
Applicant | |
| - and - |
||
| (1) The mother (2) The father (3) B (by her Children's Guardian) |
Respondents |
____________________
Stephen Cobb QC (instructed
by Harman & Harman) for the first respondent (mother)
Nicholas Baldock
(instructed by Kingsfords) for the third respondent (child)
Joanna Dodson QC
(instructed by Christian Khan) for Ms Sarah Harman
Angus Moon (instructed by
Radcliffes Le Brasseur) for Dr Y
Adam Wolanski (instructed by the BBC
Litigation Department) for the British Broadcasting Corporation
The second
respondent (father) was neither present nor represented
Hearing date : 25
February 2004
____________________
Crown Copyright ©
Mr Justice Munby :
The setting
"We have read bundles of reports from numerous experts of great distinction in this field, together with transcripts of their evidence. If we have derived an overwhelming and abiding impression from studying this material, it is that a great deal about death in infancy, and its causes, remains as yet unknown and undiscovered. That impression is confirmed by counsel on both sides. Much work by dedicated men and women is devoted to this problem. No doubt one urgent objective is to reduce to an irreducible minimum the tragic waste of life and consequent life-scarring grief suffered by parents. In the process however much will also be learned about those deaths which are not natural, and are indeed the consequence of harmful parental activity. We cannot avoid the thought that some of the honest views expressed with reasonable confidence in the present case (on both sides of the argument) will have to be revised in years to come, when the fruits of continuing medical research, both here and internationally, become available. What may be unexplained today may be perfectly well understood tomorrow. Until then, any tendency to dogmatise should be met with an answering challenge."
"With unexplained infant deaths, however, as this judgment has demonstrated, in many important respects we are still at the frontiers of knowledge. Necessarily, further research is needed, and fortunately, thanks to the dedication of the medical profession, it is continuing. All this suggests that, for the time being, where a full investigation into two or more sudden unexplained infant deaths in the same family is followed by a serious disagreement between reputable experts about the cause of death, and a body of such expert opinion concludes that natural causes, whether explained or unexplained, cannot be excluded as a reasonable (and not a fanciful) possibility, the prosecution of a parent or parents for murder should not be started, or continued, unless there is additional cogent evidence, extraneous to the expert evidence, which tends to support the conclusion that the infant, or where there is more than one death, one of the infants, was deliberately harmed. In cases like the present, if the outcome of the trial depends exclusively or almost exclusively on a serious disagreement between distinguished and reputable experts, it will often be unwise, and therefore unsafe, to proceed."
"Ministers are to review as many as 5,000 civil cases of families affected over the past 15 years by Prof Meadow's now discredited theory of Munchausen Syndrome By Proxy."
It continued:
"Mrs Hodge is likely to ask local authorities to search through their records to find all family law cases involving Meadow. Another option being considered by Mrs Hodge is to appoint a judge to trawl through the records of each authority to identify possible miscarriages of justice, but this would prove costly."
The Minister was quoted as saying:
"The Government is not running away from this issue. I hope the families understand that these are really, really difficult decisions we have to take."
"We will ensure not only that injustices in the criminal justice system, but that any potential injustices in care proceedings are identified and acted on.
We should recognise that for women who have lost a child and then had another child taken away, prison is no penalty compared with the terrible suffering that they have endured. As we deal straight away with those in prison and those involved in criminal processes, we must bear in mind the absolute and utmost gravity of the situation facing those whose injustice is at the hands not of the criminal justice system, but of the family justice system."
"The process of how to go about a review in family cases is now being considered. The judgment that I have quoted makes clear what is at issue, but the process of identifying cases and the machinery that should be used to remedy miscarriages of justice is not straightforward.
Neither the Government nor the family division of the Court of Appeal, nor anyone else, are holding back in their attempts to ensure that any injustice is remedied. That is our absolute focus, but we have to determine what the best procedures are, and what the best machinery is. That is by no means straightforward, but I do not rule out any of the suggestions that the hon. Gentleman made."
"DfES Ministers who are responsible for children at central government level, are considering the implications of this judgment for care and adoption cases. I am sure that as soon as they have reached a conclusion they will announce whether any and, if so, what steps need to be taken in relation to those cases. Noble Lords will know that it is not simply central government who have a responsibility in this area; indeed, if anything it is much more local authorities which have a responsibility in relation to child cases, and other cases are matters between private citizens. So, the role of central government is much more limited than in the case of prosecutions."
A little later in answer to further questions he added (col 913):
"The matter has become one for local authorities which, having taken care proceedings, are under an obligation to review those orders with regularity. They are required to bring matters back to court if that is their opinion."
In response to further questions he added (col 914):
" the responsible Ministers in the DfES are considering the implications of this judgment and what, if any, steps need to be taken. I do not wish to prejudge what they may say."
"It has been widely reported in the media that the Attorney General's review of criminal cases of murder, manslaughter or infanticide of an infant under two by its parent, potentially involving Sudden Infant Death Syndrome, will be extended to include civil cases. This is a misunderstanding. The Attorney General's review is limited to criminal cases. DfES Ministers are considering the implications of the judgment for themselves. They will announce as soon as possible what, if any, steps are appropriate to be taken. Any enquiries about family cases should be directed to DfES."
In the event no further announcement was made until 23 February 2004 (see below).
The present case
"Mother deliberately administered some unidentified infected substance to [B], thereby causing the rigors which were potentially life-threatening whilst [B] was in hospital between September 25th and 1st October 2001."
"The conclusion of [Dr Y and Dr X] that the most likely explanation for the rigors is deliberate interference with the cannula in the absence of any medical cause."
"Mother is undoubtedly a skilled and persistent liar, who over the years has sought to and succeeded in conning doctors, teachers and family in respect of illnesses which she claimed to be genuine but which were self-induced. She has wasted hospital resources and submitted to procedures she knew were unnecessary. Her reasons for this behaviour were given in evidence as difficulties at home in her relationship with her parents, their over-ambitious expectations for her, and her difficulties at school."
Amongst the factors Bracewell J listed as leading her to her conclusions, number 3 was:
"Mother has a history of lying and deceiving others in respect of herself over a substantial period of time."
"I make it clear that I must and do accept as accurate and reliable all the findings made by Bracewell J, and proceed from them as a starting point. There has been no new evidence which might indicate that in any significant respect her findings were mistaken."
Holman J made a final care order. B is now in the actual care of her paternal grandparents. Her two older sisters remain living at home with their parents.
"to inform you that I intend to submit a full and detailed complaint about [Dr X] and [Dr Y]. I am a parent who has been accused of having Munchausen's Syndrome by Proxy and as a result, my youngest child has been removed from our home. I am aware that this may be viewed as a vexatious complaint but these doctors have not acted in my daughters best interests and I feel that their practice needs to be examined."
A copy of the letter was sent to the Minister of State for Children. The letter asserts, inter alia, that Dr X "failed to share vital information with Social Services and other professionals involved in my daughter's care" and "gave evidence in court that was either deliberately misleading or outside his area of expertise." She asserts that Dr Y "prepared a report for court and gave evidence about our case having never met my daughter, myself or anyone else involved in the case", that he "made many errors in his report", that he "gave evidence outside his area of expertise and deliberately misled the court" and that he "referred to unpublished research to assist his argument".
"A paediatrician called as an expert witness at an initial family court hearing suggested, out of the blue, that Sheila might have deliberately injected her child with the water from a flower bowl or a lavatory. It was a claim considered ludicrous by one of the country's leading forensic toxicologists, who provided evidence for the police in Harold Shipman's case.
He told the court it was a medical impossibility for Sheila to have done such a thing. But for the family courts which do not require the standard of proof of a criminal court this was not enough to save her. Sheila has had her daughter forcibly removed with little hope of appeal."
"The medical evidence on which the learned judge's finding was based was controversial; there was no preponderance of medical opinion supporting the finding"
and the fact (so it is said) that
"[Dr Y]'s opinion and conclusions had been primarily informed, on his own admission, on research he had carried out with Professor Sir Roy Meadow, which, it is submitted, is now highly controversial."
It is to be noted that the grounds of appeal do not contain the more serious of the allegations made by the mother in her letter to the General Medical Council there is no suggestion that either Dr X or Dr Y deliberately misled the court and do not challenge the finding that the mother "is undoubtedly a skilled and persistent liar".
i) to the General Medical Council "for the purposes of pursuing her complaint" against Dr X and Dr Y; and
ii) to the Solicitor-General, to the Minister of State for Children and to the mother's Member of Parliament "so that they may consider the same within the context of any Government review of cases of alleged miscarriage of justice."
"The mother is most anxious to make submissions to the Secretary of State for Children that her case should be reviewed not only individually, but that it should be part of the evidence in any overall review of expert evidence in Munchausen by Proxy cases.
She would wish to disclose some documents in these proceedings to the Secretary of State for Children and seeks leave for general disclosure so that the Secretary of State can disclose such documents as are permitted by the Court to third parties for purposes of an individual review or an overall review of all of the Munchausen by Proxy family cases.
The [mother] also wishes to disclose documentation to the General Medical Council and has been asked to do so by 17th February 2004. I understand that consideration of [Dr Y]'s conduct is being undertaken at the behest of another party but I do not know the details. There appears to be concern about clinicians giving expert evidence without having seen either parent or child but I have no further information about this and I believe there are constrains on the GMC in disclosing more details.
Further than this, the mother feels an affinity with other families who argue that their children have been separated from them through reliance by the Court on Munchausen by Proxy experts.
She would wish that the details of her case and the evidence on which it was based, so long as the child cannot be identified, be disclosed by her to other parents, legal representatives in other cases and to investigative journalists working on Munchausen by Proxy cases.
In this respect, reference is made both to Sally Clark and Angela Cannings appeals. Both women were convicted of murder and imprisoned on the basis that they had killed their children. As part of the process of preparing their appeals, both women were able to obtain supporting information from other experts and interested parties and in turn provide information to assist each other. They were able to do this in the criminal jurisdiction and much information about these two women, their background and the expert evidence given was circulated in the public domain, with the important proviso that the women's living children were not identified.
The mother seeks leave so that she, as she sees it, is able to discuss with interested parties quite openly the basis of the Munchausen by Proxy theory as it pertains to her case.
The mother plans to appeal Mrs Justice Bracewell's Judgment and the orders made by Mr Justice Holman consequent upon Mrs Justice Bracewell's findings. But this present application represents more than the [mother]'s own appeal. It also represents her desire to deal with what she perceives as a profound injustice suffered not just by her but by other parents. She sees this as a public interest issue and her case as one which should be considered by government ministers and their officers without delay.
She wishes to abide by the Court's rules and to protect the anonymity of the child, but at the same time to speak openly about her case.
There can of course be no review by any government representatives or indeed any investigation by journalists of the [mother]'s case without specific reference to expert evidence which gives the [mother] such concern."
"I understand that you are representing my constituent, [the mother], in her forthcoming appeal.
As you know, [mother] approached me some time ago and sought help in correcting what she described as "an injustice" against her in respect of the judgement which led to the removal into care of her daughter, [B].
I am continuing to help [mother] with her case in any way I am able and to this end it would greatly assist if there was full disclosure of information and release of all appropriate documentation pertaining to the judgement.
In particular, my constituent's chances of obtaining a fair and just conclusion to her appeal would be enhanced by the early release of [Dr Y]'s report.
I am sure you will be making your own application for these documents in doing so I would be grateful if you would bring my request for disclosure to the High Court's attention."
"you will see that the mother seeks leave " to disclose the documents listed in the schedule below, edited or anonymised appropriately so that the documents do not contain any information which may lead to the identification of the child who is the subject of the proceedings, to the General Medical Council for the purposes of pursuing her complaint against [Dr Y] and [Dr X]."
We also seek leave to disclose the documents in the same format to [the] Member of Parliament for the area in which my client lives, the Minister of State for Children and the Solicitor General, so that they may consider the same within the context of any government review of cases in relation to the miscarriage of justice."
He made clear a little later still in the presence and hearing of the mother and her solicitor that he was inviting the court to make the orders sought "today". Following a short adjournment he added this:
"it had been my instructing solicitors' intention to write to Mrs Hodge and to indicate in that letter, without identifying anything about the child concerned, that there is a case which of course is going to be the subject of the appeal in the Court of Appeal, which we believe falls within the ambit of cases which are likely to be reviewed, and ask her to indicate what, if any, information she would like from this case".
i) In about March 2003 the mother gave her Member of Parliament a copy of Bracewell J's judgment. At some time she also gave him copies of the minutes of a professionals' meeting that had been held on 6 May 2003 and of a developmental assessment of B that had been prepared by a consultant community paediatrician on 22 May 2003.
ii) In July 2003 the mother sent a six-page summary of the case which she had prepared to a number of Members of Parliament.
iii) It will be recalled that on 18 January 2004 the interview with the Minister of State appeared in the Sunday Telegraph, on 19 January 2004 the Court of Appeal gave judgment in the Angela Cannings case, and on 20 January 2004 the Law Officers made their statements in Parliament. On 21 January 2001 the article about the mother appeared in the Daily Mail. The same day the mother sent to John Sweeney, at that time a freelance journalist working for the BBC (he is now an employee of the BBC), a copy of Dr Y's report of 9 May 2002. According to the mother, this had been redacted so as to delete all details that might identify B and most of the details that might identify Dr Y.
iv) Also on 21 January 2004 Ms Sarah Harman sent to the Solicitor-General a partially anonymised copy of Bracewell J's judgment and a case summary which was, I understand, a shortened version of a document that had originally been prepared by counsel for the purpose of supporting an application by the mother to the Legal Services Commission for public funding in relation to her proposed appeal. This case summary exists in two slightly different versions: version A, which contains Dr Y's name, and version B, which does not. It was version A that was sent to the Solicitor-General.
v) On 23 January 2004 Ms Sarah Harman sent copies of version B of the case summary to the Minister of State for Children, to a BBC journalist and to a GMTV journalist.
vi) On 25 January 2004 Ms Sarah Harman sent a copy of version B of the case summary to a journalist on the Guardian. It was accompanied by a letter which contained this illuminating comment:
"I believe my client 'Sheila' who's details are attached and who was featured in the Mail on 21 January has a case which merits review and examination. The Court of Appeal is not the best or only place to do this. We shouldn't have to resort to the Mail! I hope you might be interested in pursuing this issue further. I would love to disclose [Dr Y]'s report to you but I can't! or if I did, I would risk being struck off."
vii) On 26 January 2004 the Solicitor-General sent the copy of Bracewell J's judgment she had received from Ms Sarah Harman on to the Minister of State for Children. The circumstances in which this happened have been described both by Ms Sarah Harman, in a letter to the local authority dated 11 February 2004, and by the Solicitor-General, in a letter to the local authority dated 23 February 2004. Ms Sarah Harman's account is that:
"On receipt of the transcript Ms Harriet Harman discussed the matter with Ms Sarah Harman who believed that it would be permissible to pass the judgment on to Ms Margaret Hodge, Minister for Children which was done."
The Solicitor-General adds this:
"Before sending the judgment to the Minister for Children I sought advice from a lawyer in the Legal Secretariat to the Law Officers. He looked quickly at the relevant law and believed that the prohibition on disclosure in Children Act proceedings without the leave of the court did not apply to the judgment. But he advised me to check with the Solicitor in the case that there was no specific ruling in this case prohibiting disclosure of the judgment. His advice was communicated to me. And on the basis I asked the solicitor if she was content for me to send the judgment to the Minister for Children. She assented and I sent the judgment to the minister for children. The lawyer in question in the Legal Secretariat now believes he was probably wrong on the advice he gave me."
viii) On 30 January 2004 Ms Sarah Harman sent a copy of version B of the case summary to the mother's Member of Parliament. It was accompanied by a letter from Ms Sarah Harman which in effect solicited the Member of Parliament to write the letter which in fact, as we have seen, he wrote her later the same day.
ix) On 6 February 2004 (the day after the hearing before Sumner J) Ms Sarah Harman spoke to the Solicitor-General, who indicated that she would speak to the Minister of State and arrange for all the documents that had been sent to be returned.
x) On 10 February 2004 the Minister of State returned to Ms Sarah Harman the copy of the case summary that had been sent to her on 23 January 2003 together with Ms Sarah Harman's original covering letter. Someone in the Minister's office had endorsed this letter
"expidite [sic] verdict as will give a civil case judgement on which we can base review".
xi) On 12 February 2004, having retrieved the document from the Minister of State, the Solicitor-General returned to Ms Sarah Harman the copy of Bracewell J's judgment. Although the Solicitor-General's covering letter refers only to "the judgement" [sic], it appears that she also returned the copy of version B of the case summary that had been sent to her.
i) In a letter dated 11 February 2004 Ms Sarah Harman made partial disclosure of the matters referred to in paragraphs (iv) and (vii). She disclosed that she had sent the copy of Bracewell J's judgment, but made no reference to the case summary also sent to the Solicitor-General. Nor did she make any reference to the matters referred to in paragraphs (v), (vi) and (viii).
ii) On 16 February 2004 the mother made a witness statement disclosing the matter referred to in paragraph (iii) and (in part) that referred to in paragraph (ii). She also disclosed that she had by then had a number of contacts with the media, including, in addition to the Daily Mail and the BBC, contacts with the Sunday Times and ITN. She had also given a filmed interview to another BBC reporter: this had not at that stage been broadcast. In her statement she said that she realised "I must be totally candid." Her statement was, in fact, very far from candid. It made no disclosure of the matters referred to in paragraph (i) and only partial disclosure of that referred to in paragraph (ii).
iii) On 20 February 2004 Ms Sarah Harman made a witness statement disclosing for the first time that she had sent the case summaries to the Solicitor-General and the Minister of State. She also gave details of various contacts she had had with the media in relation to B's case, her account being prefaced by the words "I detail below the various journalists I have spoken to". Anyone reading that statement would, in my judgment, have been entitled to assume that it was intended to constitute a full disclosure of everything Ms Sarah Harman had done. Her statement made clear that she wished to "apologise profusely" for what she called "the breach of the rules for which I take full responsibility" and for which, she said, she wished to "offer my sincere apologies to the Court." In fact she had still not disclosed the other matters referred to in paragraphs (v), (vi) and (viii) the fact that she had sent copies of the case summary to various journalists and to the mother's Member of Parliament.
iv) One might be forgiven for thinking that by the time when the hearing before me began on 25 February 2004 both the mother and Ms Sarah Harman had made full and frank disclosure. But at a late stage during the hearing in fact shortly after 3.30 pm on 25 February 2004 Miss Sarah Harman's counsel, Ms Joanna Dodson QC, revealed that her client had sent a copy of the case summary to the mother's Member of Parliament. (There was no reference to the fact that Ms Sarah Harman had also, as we now know, sent copies of the case summary to various journalists.) That came as news both to me and to the local authority. I commented (and Ms Sarah Harman and the mother were in court as I said it) that I assumed that by now full disclosure had been made. Not a bit of it!
v) On 26 February 2004 the day after the hearing the mother made another witness statement in which for the first time she disclosed one of the matters referred to in paragraph (i) the fact that she had sent a copy of Bracewell J's judgment to her Member of Parliament. I should make clear that this was not something known either to Ms Sarah Harman or to her partner until after the hearing before me had concluded: I am told, and I accept, that it was only after the hearing that the mother for the first time told Ms Sarah Harman's partner of these matters.
vi) However, the full extent of the mother's disclosures as referred to in paragraphs (i) and (ii) became clear only on 27 February 2004, and even then only because the mother's solicitors obtained certain papers from her Member of Parliament.
vii) The full extent of Ms Sarah Harman's disclosures as referred to in paragraphs (v), (vi) and (viii) again became clear only on 27 February 2004, when Ms Sarah Harman made yet another witness statement. In her previous statement of 20 February 2004 she had said that "in none of these contacts did I discuss the evidence at the care proceedings". In her latest statement she was compelled to admit that she had in fact disclosed what she concedes were "considerable details of the evidence given at the care proceedings". She asserts her belief that version B of the case summary was an account of the mother's version of her case "which could be safely put in the public domain because it did not disclose any identifying features relating to the child", but fails to provide any convincing explanation as to why, even on that footing, the version of events set out in her earlier statement was so partial.
i) Given the disclosure which we now know had, to her certain knowledge, already taken place by then it was disingenuous, to say the least, of Ms Sarah Harman to say in her witness statement of 29 January 2004 that the mother "would wish to disclose some documents in these proceedings to the Secretary of State [sic] for Children". The false impression thereby created was merely compounded by the fact that three days earlier, on 26 January 2004, Ms Sarah Harman's partner had written a letter to the local authority saying:
"Our client wishes the Children's Minister, Margaret Hodge, to have a copy of Mrs Justice Bracewell's Judgment and also [Dr Y]'s report of May 2002. If we disclose those documents to the Minister, it is likely that she will wish to disclose them to other third parties Please could you consider both the Judgment and the report and indicate what parts of those documents need to be edited" (emphasis added).
It is not clear whether that letter was written before or after the telephone conversation that took place the same day between Ms Sarah Harman and the Solicitor-General. It seems to me to matter not.
ii) Both mother and Ms Sarah Harman sat through the proceedings before Sumner J on 5 February 2004 without disclosing anything of what had gone on: specifically, without disclosing that some of the documents, permission to disclose which to the Solicitor-General, the Minister of State and the mother's Member of Parliament was being sought from the judge, had, as they knew, already been disclosed to those persons. As Mr Howard observes, we can understand now why Mr Cobb had been instructed to make the submission to Sumner J that he should make the order sought then and there. That Sumner J was thoroughly misled is demonstrated, as Mr Howard points out, by the fact that, as the Transcript records, he said:
"I am going to make a strong presumption that [the mother] is not going to do anything that might remotely be a contempt of court. That is where I start from."
If he had known the truth, Sumner J might more appropriately have taken as his starting point that the mother had been committing contempts of court for some months, as had her solicitor, albeit for a rather shorter period.
iii) Ms Sarah Harman and the mother did not make full and frank disclosure of what they had done until after the hearing before me on 25 February 2004 had concluded.
"Although it is ultimately a matter for the courts to determine individual cases that come before them, it is right for me to give proper guidance to local authorities as to how they should proceed. I will therefore write shortly to councils with social services responsibilities to ask them to take the following action. First, I will ask them to consider those cases affected by the Attorney-General's review. In these cases, councils should stand ready to act in the light of the outcome of that review.
Secondly, within the next four weeks, councils with social services responsibilities should identify and review current case. Those are cases in which they have commenced proceedings in relation to a child and in which the court has not yet made a final order. In those cases councils should consider with their lawyers the implications for those proceedings of the Court of Appeal's judgment in the Cannings case.
Thirdly, within the next 12 weeks social services departments should, together with their lawyers, identify cases in which a final care order was made in the past which involved harm to the child or a sibling, and in which the grounds for the making of an order depended exclusively, or almost exclusively, on a serious disagreement between medical experts about the cause of the harm. In such cases councils should again consider, with their lawyers, whether there are now doubts about the reliability of the expert medical evidence. If that is so, they should bearing in mind the child's current circumstances and current best interests consider whether to apply to the court for the care order to be discharged, or whether to support any application that made be made by the parents or the child. When reviewing cases, councils will also need to take into account any fresh case law judgments from the Appeal Court that may be relevant.
The number of case falling into the category that I am asking councils to review is likely to be manageable, although I do not intend to speculate about the precise number. Our best estimate is that it may number no more than the low hundreds, rather than thousands. I am not suggesting that it will be appropriate in every case, following a review, to apply for the discharge of the original care order. The decision must depend entirely on the circumstances of each case. Councils already have a duty to review the cases of children who are the subjects of care orders at least every six months. Given the range of public concerns that have been raised, it would not be right to impose an arbitrary limit on the types of cases that should be reviewed. The key determining factor is that the making of the care order depended exclusively, or almost exclusively, on a dispute between medical experts.
When applications are made to the court, whether by the local authority, the parents or the child, it will be for the court to decide in all cases whether the care order should be discharged."
In answer to a question she added this (col 43):
"She asked whether we would establish a national helpline. We considered that, but, as a range of support agencies is in situ, we decided it would be better to work through the helplines and organisations that already exist. All local authorities have adoption support facilities and a number of national organisations offer support to all the groups of people who might be involved. Such organisations include NORCAP the National Organisation for the Counselling of Adoptees and Parents the Family Rights Group, After Adoption and the Post-Adoption centre. There is a whole range of such groups and we thought it better to work through them."
The issues
The relief sought
"(a) The child suffered rigors while an in-patient in hospital in 2001.
(b) The mother was found by the court to have deliberately administered an unidentified infected substance to the child, thereby causing the rigors which were potentially life threatening while the child was in hospital in 2001.
(c) The evidence in support of that finding was circumstantial.
(d) Nowhere was the substance identified.
(e) [Dr Y] was the jointly instructed paediatric expert in the case.
(f) [Dr Y] did not see the mother or the child for the purposes of his assessment.
(g) [Dr Y]'s experience was based in part on research undertaken with Professor Sir Roy Meadow.
(h) [Dr Y] had no expertise of fabricated disease in the field 'Fabricated or Induced Illness' syndrome / Munchausen Syndrome by proxy, but supported the finding.
(i) Other experts were of the view that there was no known cause for the rigors.
(j) Senior staff at the hospital considered it unlikely that the mother would have had the opportunity to administer the substance.
(k) The judge found that the mother had lied about a number of matters."
Although I have referred to the expert as Dr Y, the mother in fact wishes to publish Dr Y's name.
The law: the statutory framework
"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."
"publish any material which is intended, or likely, to identify any child as being involved in any proceedings before [a family court] in which any power under [the 1989] Act may be exercised by the court with respect to that or any other child".
Section 12(1)(a) of the Administration of Justice Act 1960 has the effect of making it a contempt of court to publish
"information relating to proceedings before any court sitting in private where the proceedings (i) relate to the exercise of the inherent jurisdiction of the High Court with respect to minors; (ii) are brought under the Children Act 1989; or (iii) otherwise relate wholly or mainly to the upbringing of a minor."
Rule 4.23 of the Family Proceedings Rules 1991 provides, subject to certain narrow exceptions, that
"no document, other than a record of an order, held by the court and relating to proceedings [under the Children Act] shall be disclosed without the leave of the judge or district judge."
The law: rule 4.23
The law: section 12
"At one time it was believed that the mere publication of information about a ward of court was contempt of court. Although that heresy was exploded by the Court of Appeal in In re F , the belief seems to have lingered on well into the 1980s Let it be said clearly, once and for all: the publication of information about a ward, even if the child is known to be a ward, is not, of itself and without more ado, a contempt of court At one time, and even after the Court of Appeal's decision in In re F, there was widespread misunderstanding as to the ambit of section 12 and, in particular, as to the meaning of the critical words "information relating to proceedings before [the] court sitting in private". For long it was thought that the effect of section 12 was to prevent publication of any information whatever about wardship proceedings. Again it was only in the late 1980s that a true understanding of the limited ambit of section 12 emerged It suffices for present purposes to say that, in essence, what section 12 protects is the privacy and confidentiality: (i) of the documents on the court file; and (ii) of what has gone on in front of the judge in his courtroom. In contrast, section 12 does not operate to prevent publication of the fact that wardship proceedings are on foot, nor does it prevent identification of the parties or even of the ward himself. It does not prevent reporting of the comings and goings of the parties and witnesses, nor of incidents taking place outside the court or indeed within the precincts of the court but outside the room in which the judge is conducting the proceedings. Nor does section 12 prevent public identification and at least some discussion of the issues in the wardship proceedings."
"[E]vents in the lives of the children in the present case which are already in the public domain or which do not relate to the proceedings can be the subject of publication.
Furthermore certain material which might well qualify in a loose sense as information relating to the proceedings can be published because the prohibition is to be construed not loosely but strictly and by direct reference to the mischief at which it is directed. Thus, in the absence of a specific injunction, the following can be published:
(a) the fact, if it be the case, that a child is a ward of court and is the subject of wardship proceedings or that a child is the subject of residence or other proceedings under the Children Act 1989 or of proceedings relating wholly or mainly to his maintenance or upbringing ;
(b) the name, address or photograph of such a child as is mentioned in (a) ;
(c) the name, address or photograph of the parties (or, if the child is a party, the other parties) to such proceedings as are mentioned in (a) ;
(d) the date, time or place of a past or future hearing of such proceedings ;
(e) the nature of the dispute in such 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 such proceedings "
i) The meaning of the word "publication" in section 12.
ii) Whether section 12 prohibits the identification of witnesses.
iii) The extent to which section 12 prohibits discussion of the details of a case.
I shall deal with these in turn.
"Both section 12 of the 1060 Act and section 97 of the 1989 Act raise the same question: what is meant by publication? Mr Spon-Smith offers us the definition in the Shorter Oxford Dictionary. Mr Everall counters with Arlidge, Eady & Smith on Contempt, 2nd ed (1999), para 879. The authors there submit that the statutory language should be given the wide interpretation of the law of defamation: it should not be confined to information communicated through the media but should extend to private communications to individuals. I do not read a narrower sense in the dictionary definition and would accept that a conversation between the CFR and another individual might amount to publication, but I cannot accept that a CFR publishes, and thereby exposes himself to a risk of contempt, when he reports concerns to the relevant statutory authority charged with the collection and investigation of material suggestive of child abuse. Such a communication between two professionals exchanging information in the course of their respective functions, each acting in furtherance of the protection of children, does not constitute a publication breaching the privacy of contemporaneous Children Act proceedings."
"[66] In my judgment the second, and fatal weakness in Mr Everall's argument lay in its reliance on a wide construction of the word "publication". Mr Everall acknowledged that in the instant case, the mother could have communicated the identical information to social services without seeking the judge's permission. She would not, he accepted, have been in breach of either section 12 of the Administration of Justice Act 1960 or section 97 of the 1989 Act. But the concession prompts the inevitable question: why would the CFR be in contempt and the parent not? Why might the CFR have committed a criminal offence and the parent not? It is, of course, no answer that the information provided by the parent is not related to the proceedings, and Mr Everall did not attempt so to argue. The only logical answer to this question, therefore, in my judgment, is that neither is "publishing" the information. Each is communicating information to a statutory body charged with responsibility for child protection. That is neither a criminal offence nor a contempt of court.
[67] Like Thorpe LJ, accordingly, I would accept Mr Spon-Smith's primary submission. The word "publication" should be given its everyday meaning. Responsible inter-disciplinary communication in proceedings relating to children is not "publication" of that information within either the Administration of Justice Act 1960 or the 1989 Act.
[68] As I indicated in para [61] above, I do not see our decision on this point as weakening the true basis of confidentiality or undermining the court's resistance to publication of information in the sense in which it is likely to be harmful to children. Children need to be protected from publicity in the usually understood meaning of that term, where public knowledge of their plight or the activities of their parents in relation to them would be harmful. In my judgment, therefore, giving the word "publication" its ordinary meaning is consistent with the framework of the 1989 Act and does nothing to obstruct the court's ability to protect children from harm."
Earlier in para [61] Wall J had said:
"I would not wish to be thought in any way to be seeking to water down or diminish the need for confidentiality in proceedings relating to children. Mr Everall's argument is historically well rooted and honourably designed to afford the maximum protection for children against unwarranted or unauthorised disclosure of information. The only question is whether the prohibitions which he submits are universal do in fact apply to inter-disciplinary communication between CFRs and child protection social workers. In my judgment, for that to be the case, the statutory language would have to be clear and unambiguous, and the court would need to be driven to the conclusion that no alternative construction of it was permissible."
"the difficulty remains that there may come a time when a communication takes place of material, falling within the categories defined in section 12, but which does not serve such a positive and useful purpose, as a matter of public policy. It seems unnecessary to define "publication" purely in the light of these rather special facts. Thus, it may be that the greater flexibility acknowledged by Thorpe LJ has more to commend it."
I respectfully agree. If Wall J is correct, it means that any party could, with impunity, send the whole of the papers in a care case to a journalist, for that would not, on his approach, be a publication. Surely that cannot be right. Furthermore, and with all respect to him, Wall J's approach seems to be inconsistent with cases such as A County Council v W and others (Disclosure) [1997] 1 FLR 574, where Cazalet J proceeded on the footing that, absent leave of the court, section 12 would have prevented the disclosure of papers to the General Medical Council, and In re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76, where the Court of Appeal proceeded on the footing that, absent leave of the court, section 12 would have prevented the disclosure of papers to the police. I suspect there are many other such cases.
"At (f) above, I noted that it is permissible to publish 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 is taking place.
I am clear that, were a journalist to station himself outside the courtroom at the forthcoming hearing of these residence proceedings, it would be permissible for him to publish the identity of the witnesses whom he saw go in and out. It therefore becomes particularly anomalous if the identity of the witnesses cannot be published before the hearing.
I hold that it is not a contempt of court to identify a witness, even in the types of proceedings in private specified as exceptional in s 12(1) of the 1960 Act."
"However, in my view, the analysis becomes more difficult when one moves to [the] second feature, namely that, in Mr Dempster's piece, the witnesses were identified as giving evidence for the father. When one asserts that a witness is giving evidence for one party against the other, one is moving from the formal shape of the proceedings towards what, in Pickering , Lord Bridge called 'the substance of the matters which the court has closed its doors to consider'. The assertion does not reveal the substance of those matters but it cannot be made other than by reference to the stance taken by the witness in relation to them. Put another way, it is the content of his affidavit or statement which determines the assertion. I consider this to be a grey area but, in the light of what follows, I do not regard it as necessary for me to reach a concluded view upon it."
It is, however, necessary for me now to decide the point.
"Says a friend of [the mother]: "She has been portrayed as a bad mother who is unfit to look after her children. Nothing could be further from the truth. She is wonderful to [them] and they love her. She wants custody of [them] and we will see what happens in court"."
immediately preceded by the statement that the mother was said to be distraught that four people, who were named, had provided affidavits they were in fact signed witness statements in support of the father's case.
"I turn to the third alleged feature, namely that in the piece Mr Dempster recounts an allegation to the effect that the mother has been portrayed in the proceedings as a bad mother who is unfit to look after the children."
He continued at p 903:
"I am satisfied that the reference to the portrayal of the mother in the proceedings as a bad mother went far beyond a description of the nature of the dispute and reached deeply into the substance of the matters which the court has closed its doors to consider. If the reference could successfully be finessed as a legitimate identification of the nature of the dispute, the privacy of the proceedings in the interests of the child would be not just appropriately circumscribed but gravely invaded."
I agree with Wilson J's analysis and, if I may respectfully say so, with the particular conclusion to which he came in that case.
The law: section 12 summary
i) Section 12(1)(a) of the Administration of Justice Act 1960 has the effect of prohibiting the publication of:
"information relating to proceedings before any court sitting in private where the proceedings (i) relate to the exercise of the inherent jurisdiction of the High Court with respect to minors; (ii) are brought under the Children Act 1989; or (iii) otherwise relate wholly or mainly to the upbringing of a minor."
ii) Subject only to proof of knowledge that the proceedings in question are of the type referred to in section 12(1)(a), the publication of such information is a contempt of court.
iii) There is a "publication" for this purpose whenever the law of defamation would treat there as being a publication. This means that most forms of dissemination, whether oral or written, will constitute a publication. The only exception is where there is a communication of information by someone to a professional, each acting in furtherance of the protection of children.
iv) Specifically, there is a "publication" for this purpose whether the dissemination of information or documents is to a journalist or to a Member of Parliament, a Minister of the Crown, a Law Officer, the Director of Public Prosecutions, the Crown Prosecution Service, the police (except when exercising child protection functions), the General Medical Council, or any other public body or public official. The Minister of State for Children is not a child protection professional. Disclosure to the Minister of State cannot therefore be justified on the footing of the exception to the general principle.
v) Section 12 does not of itself prohibit the publication of:
a) the fact, if it be the case, that a child is a ward of court and is the subject of wardship proceedings or that a child is the subject of residence or other proceedings under the Children Act 1989 or of proceedings relating wholly or mainly to his maintenance or upbringing;
b) the name, address or photograph of such a child;
c) the name, address or photograph of the parties (or, if the child is a party, the other parties) to such proceedings;
d) the date, time or place of a past or future hearing of such proceedings;
e) the nature of the dispute in such 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;
g) the name, address or photograph of the witnesses who have given evidence in such proceedings;
h) the party on whose behalf such a witness has given evidence; and
i) the text or summary of the whole or part of any order made in such proceedings.
vi) Section 12 prohibits the publication of:
a) accounts of what has gone on in front of the judge sitting in private;
b) documents such as affidavits, witness statements, reports, position statements, skeleton arguments or other documents filed in the proceedings, transcripts or notes of the evidence or submissions, and transcripts or notes of the judgment (this list is not necessarily exhaustive);
c) extracts or quotations from such documents;
d) summaries of such documents.
These prohibitions apply whether or not the information or the document being published has been anonymised.
vii) (By way of example of how the principles in (v) and (vi) inter-relate) in a case such as the present case section 12 does not of itself prohibit the publication of:
a) the issues in the case as being whether the mother suffered from Munchausen's Syndrome by Proxy and whether she had killed (or attempted to kill) her child(ren) by, for instance, smothering or poisoning;
b) the identity of the various medical experts who have given evidence in relation to those issues; and
c) which of the parties each expert has given evidence for or against.
viii) Irrespective of the ambit of section 12 of the 1960 Act, section 97(2) of the 1989 Act makes it a criminal offence to
"publish any material which is intended, or likely, to identify any child as being involved in any proceedings before [a family court] in which any power under [the 1989] Act may be exercised by the court with respect to that or any other child".
ix) This is all subject to any specific injunction or other order that a court of competent jurisdiction may have made in any particular case.
The law: the inherent jurisdiction
"(1) The exercise of the judicial discretion which arises in these cases requires consideration of a very wide range of factors. In the final analysis it involves a balancing exercise in which the judge has to identify, evaluate and weigh those factors which point in favour of the disclosure sought against those factors which point in the other direction.
(2) The interests of the child (which typically point against disclosure) are a 'major factor' and 'very important' But it is clear that the child's interests are not paramount.
(3) In the typical case the most important factor pointing against disclosure, other than the interests of the child involved, is what Sir Stephen Brown P in Re D (Minors) (Wardship: Disclosure) [1994] 1 FLR 346, 351A, referred to as 'the importance of confidentiality in wardship proceedings and the frankness which it engenders in those who give evidence to the wardship court'."
"Wrapped up in this concept of confidentiality there are, as it seems to me, a number of different factors and interests which need to be borne in mind:
(i) First, there is the interest of the particular child concerned in maintaining the confidentiality and privacy of the proceedings in which he has been involved, what Balcombe LJ referred to as the 'curtain of privacy'.
(ii) But there is also, secondly, the interest of litigants generally that those who, to use Lord Shaw of Dunfermline's famous words in Scott v Scott [1913] AC 417, 482, 'appeal for the protection of the court in the case of [wards]' should not thereby suffer 'the consequence of placing in the light of publicity their truly domestic affairs'. It is very much in the interests of children generally that those who may wish to have recourse to the court in wardship or other proceedings relating to children are not deterred from doing so by the fear that their private affairs will be exposed to the public gaze private affairs which often involve matters of the most intimate, personal, painful and potentially embarrassing nature. As Lord Shaw of Dunfermline said: 'The affairs are truly private affairs; the transactions are transactions truly intra familiam'.
(iii) Thirdly, there is a public interest in encouraging frankness in children's cases, what Nicholls LJ referred to in Brown v Matthews [1990] Ch 662, 681C, as the frank and ready co-operation from people as diverse as doctors, school teachers, neighbours, the child in question, the parents themselves, and other close relations, including other children in the same family, on which the proper functioning of the system depends. it is very much in the interests of children generally that potential witnesses in such proceedings are not deterred from giving evidence by the fear that their private affairs or privately expressed views will be exposed to the public gaze.
(iv) Fourthly, there is a particular public interest in encouraging frankness in children's cases on the part of perpetrators of child abuse of whatever kind
(v) Finally, there is a public interest in preserving faith with those who have given evidence to the family court in the belief that it would remain confidential. However, as both Ralph Gibson LJ in Brown v Matthews [1990] Ch 662, 672B, and Balcombe LJ in In re Manda [1993] Fam 183, 195H, make clear, whilst persons who give evidence in child proceedings can normally assume that their evidence will remain confidential, they are not entitled to assume that it will remain confidential in all circumstances "
"The last few months have seen an unprecedented number of media attacks on paediatricians. Although this has largely been around high-profile court cases, the impact on the whole of child protection has been enormous. The public, and indeed many professionals, are confused. Paediatricians are deeply concerned, both for themselves and for their families. The purpose of this letter is to let you know that we do recognise this as a major issue, and to let you know what we are doing about it.
That this is causing a major problem is evident from the fact that paediatricians are becoming reluctant to become involved in child protection unless they absolutely have to. A substantial number of designated and named doctor posts are unfilled. Our recent survey of all paediatricians, for which we thank you for the 75+% response rate, has shown us that in the last five years one in ten have had a complaint against them relating to child protection work. Increasing numbers are reported to the GMC by aggrieved parents. Many of our trainees say they don't want to do child protection work. In the midst of this the College continues to receive a large number of requests from solicitors to suggest the names of paediatricians who will give second and expert opinions something it is becoming increasingly difficult to do as people become more unwilling to undertake this kind of work."
He continued:
"We are not on our own in being under pressure. Australia and New Zealand have experienced similar difficulties, and only last week I had a letter signed by many of the leading child protection experts in the United States. I quote:
We are aware of the continuing and massive backlash in the United Kingdom against child protection, which uses as a strategy the promulgation of disinformation and vilification of certain doctors through sensational and convincing media campaigns. As President of the Royal Collage of Paediatrics and Child Health, you are doubtless concerned that such campaigning poses a great risk to maltreated children, has a chilling effect upon paediatricians' willingness to involve themselves in these cases, and sets back the gains that have been made on behalf of abused and neglected children during the past 40 years.
We are writing to you now because we deeply share that concern, and with the hope that we can begin a dialogue about a problem that is mutual even if currently manifested somewhat differently in our different countries. These are difficulties that, on both sides of the Atlantic, promise to endure and enlarge unless there is a heightened corrective response both immediately and over time. The response must come from those who understand the issues and what is at stake for the children.
The judiciary is also aware of our concerns. A recent letter from Dame Elizabeth Butler-Sloss, President of the Family Division, stated:
Paediatricians are probably feeling very bruised and vulnerable at the moment. The judiciary, however, have a clear appreciation of the immensely valuable work you do and the enormous importance of your contribution to child welfare and protection."
"Lord Laming heard evidence that child protection is an unpopular specialty of paediatrics. He chose not to address the reasons in detail. There are many, but one issue that increasingly inhibits high quality child protection work is the fear of complaints and litigation. No one condones poor clinical practice, but some complaints are malicious and are intended to obstruct social work and police investigations, and some arise from orchestrated campaigns."
The law: the Human Rights Act 1998
i) The mother seeks to assert her rights under Articles 8 and 10 to impart information about the proceedings to the media and others, to tell her story to the world through the medium of the Daily Mail and the BBC. She also seeks to assert her rights under Article 6 to a fair trial, rights which she says point in favour of at least some degree of publicity for the proceedings.
ii) B seeks to assert her rights under Article 8 to respect for her private and family life her right to keep her private life private rights which she seeks to vindicate by preserving the confidentiality of her personal data and the privacy of the proceedings. She also seeks to assert her rights under Article 6 to a fair trial, rights which she says point in favour of protecting her private life by maintaining the privacy of the proceedings.
iii) There are also the rights under Article 10 of the media and others to receive from the mother the information about the proceedings she wishes to impart and to publish or broadcast her story.
iv) There are wider public interests the interests of the community as a whole both in preserving freedom of expression and, as recognised in Z v Finland (1997) 25 EHRR 371, in protecting the confidentiality of personal data and other information received in confidence.
v) There is also the public interest an interest of the community as a whole in promoting the administration of justice, in maintaining the authority of the judiciary and in maintaining the confidence of the public at large in the courts. This crucially important public interest may pull in different directions:
a) The mother points to the vital importance, if the administration of justice is to be promoted and public confidence in the courts maintained, of justice being administered in public or at least in a manner which enables its workings to be properly scrutinised so that the judges and other participants in the process remain visible and amenable to comment and criticism.
b) Both B and Dr Y, on the other hand, albeit from their different perspectives, point to the vital importance, if the administration of justice is to be promoted and public confidence in the Family Division maintained, of preserving the privacy of proceedings such as those with which I am concerned. There is, as Mr Moon puts it on behalf of Dr Y, an important public interest in preserving faith with those who have given evidence to the family court in the belief that their evidence would remain confidential and in encouraging co-operation from independent experts such as Dr Y.
"Article 8 embraces both the right to maintain one's privacy and, if this is what one prefers, not merely the right to waive that privacy but also the right to share what would otherwise be private with others or, indeed, with the world at large. So the right to communicate one's story to one's fellow beings is protected not merely by Article 10 but also by Article 8."
"such proceedings are prime examples of cases where the exclusion of the press and public may be justified in order to protect the privacy of the child and parties and to avoid prejudicing the interests of justice. To enable the deciding judge to gain as full and accurate a picture as possible of the advantages and disadvantages of the various residence and contact options open to the child, it is essential that the parents and other witnesses feel able to express themselves candidly on highly personal issues without fear of public curiosity or comment to pronounce the judgment in public would, to a large extent, frustrate these aims."
This, I emphasise, remains the case: see P v BW (Children Cases: Hearings in Public) [2003] EWHC 1541 (Fam), [2004] 1 FLR 171, esp at paras [48] and [60].
"Regard must be had to the special role of the judiciary in society. As the guarantor of justice, a fundamental value in a law-governed State, it must enjoy public confidence if it is to be successful in carrying out its duties."
In Worm v Austria (1998) 25 EHRR 454 at para [40] the court said:
"The phrase "authority of the judiciary" includes, in particular, the notion that the courts are, and are accepted by the public at large as being, the proper forum for the settlement of legal disputes and for the determination of a person's guilt or innocence on a criminal charge; further, that the public at large have respect for and confidence in the court's capacity to fulfil that function. "Impartiality" normally denotes lack of prejudice or bias. However, the court has repeatedly held that what is at stake in maintaining the impartiality of the judiciary is the confidence which the courts in a democratic society must inspire in the accused, as far as criminal proceedings are concerned, and also in the public at large. It follows that, in seeking to maintain the "authority and impartiality of the judiciary", the Contracting States are entitled to take account of considerations going beyond the concrete case to the protection of the fundamental role of courts in a democratic society."
Earlier in Axen v Germany (1984) 6 EHRR 195 at para [25] the court had said:
"The public character of proceedings before the judicial bodies referred to in Article 6(1) protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts, superior and inferior, can be maintained. By rendering the administration of justice visible, publicity contributes to the achievement of the aim of Article 6(l), namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society, within the meaning of the Convention."
"freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It facilitates the exposure of errors in the governance and administration of justice of the country."
That was a case involving prisoners who alleged that they had been wrongly convicted. They sought with the assistance of journalists to make public the wrongs which they allegedly suffered. Lord Steyn commented at p 127:
"They wish to challenge the safety of their convictions. In principle it is not easy to conceive of a more important function which free speech might fulfil."
And I repeat in this context what I said in Harris at para [368]:
"The freedom to publish things which judges might think should not be published is all the more important where the subject of what is being said is the judges themselves. Any judicial power to punish such publications requires the most cogent justification. Even more cogent must be the justification for giving the judges a power of prior restraint."
"it must never be forgotten that, with the state's abandonment of the right to impose capital sentences, orders of the kind which judges of this Division are typically invited to make in public law proceedings are amongst the most drastic that any judge in any jurisdiction is ever empowered to make. It is a terrible thing to say to any parent particularly, perhaps, to a mother that he or she is to lose their child for ever."
When a family judge makes a freeing or an adoption order in relation to a twenty-year old mother's baby, the mother will have to live with the consequences of that decision for what may be upwards of 60 years, and the baby for what may be upwards of 80 years. We must be vigilant to guard against the risks. And we must have the humility to recognise and to acknowledge that public debate, and the jealous vigilance of an informed media, have an important role to play in exposing past miscarriages of justice and in preventing possible future miscarriages of justice.
"In light of the attention which the Court of Appeal's judgment in Cannings has attracted, and the level of public concern it has generated, it is highly desirable that the public be given appropriate information about the resulting impact in family cases.
Where applications for the variation, discharge or revocation of final orders are made, judges should consider issuing in public at the conclusion of the case suitably anonymised judgments. Due consideration will of course be given to any concurrent proceedings, particularly criminal proceedings, upon which publicity may have a bearing.
It is also worth giving consideration to increasing the frequency with which anonymised family court judgments in general are made public. According to current convention, judgments are usually made public where they involve some important principle of law which in the opinion of the judge makes the case of interest to the law reporters. In view of the current climate and increasing complaints of 'secrecy' in the family justice system, a broader approach to making judgments public may be desirable."
I respectfully, and emphatically, agree.
The law: the balancing exercise
"identifying the extent to which refusing to grant the relevant terms of the injunction asked for would be a proportionate interference with the private life of the child on the one hand and their grant would be a proportionate interference with the rights of the press under Article 10 on the other hand."
Discussion: past disclosures
Discussion: proposed disclosure to the General Medical Council
"There is obviously a high public interest, analogous to the public interest in the due administration of criminal justice, in the proper administration of professional disciplinary hearings, particularly in the field of medicine."
He added at para [20]:
"The balance came down in favour of production as it invariably does, save in exceptional cases."
In the present case it is the General Medical Council itself which, albeit by way of response to the mother's complaint, has indicated that it wishes to have access to the papers.
"(i) the maintenance of the confidentiality of the documents themselves the documents should not be read into the public record or otherwise put in the public domain;
(ii) the minimum public disclosure of any information derived from the documents; and
(iii) the protection of the patient's anonymity, if not in perpetuity then at any rate for a very long time indeed."
That approach, endorsed by the Court of Appeal, is the approach I propose to adopt in the present case. I shall accordingly make an order permitting disclosure of the relevant papers to the General Medical Council. The order will be based on the orders which I made in A Health Authority v X (Discovery: Medical Conduct) [2001] 2 FLR 673 and A Health Authority v X (Discovery: Medical Conduct) (No 2) [2002] EWHC 26 (Fam), [2002] 1 FLR 383.
Discussion: proposed disclosure of matters into the public domain
i) The first is an order contra mundum, made in exercise of the restraining jurisdiction, and designed:
a) to prevent the public identification of B, her mother, and her carers;
b) to prevent the public identification of Dr X and Dr Y; and
c) to protect B and her carers from being approached by the media; whilst
d) permitting the public identification of the local authority; and
e) permitting the mother (subject of course to the restraints of section 12 of the 1960 Act) to talk to and be interviewed by the media if she wishes.
ii) The other is an order, made in exercise of the disclosure jurisdiction, permitting the mother (but without identifying Dr Y) to put into the public domain the various matters which I have listed in paragraph [52] above and also permitting the mother to put into the public domain a suitable edited extract of the letter from the social worker.
"There is also, of course, the reality which has to be faced that those who are within X's "inner circle" will recognise that the story is about him, even if he is not named or otherwise directly identified. As ButlerSloss LJ (as she was then) said in In re M and N (Minors) (Wardship: Publication of Information) [1990] Fam 211 at pp 225, 226:
"unless there is a total ban someone somewhere may put the story to the person. That seems to me to be inevitable to those who know the facts any description, for instance from this judgment, will lead to identification."
But as Neill LJ said in In re W (A Minor) (Wardship: Restrictions on Publication) [1992] 1 WLR 100 at p 103:
"It is to be anticipated that in almost every case the public interest in favour of publication can be satisfied without any identification of the ward to persons other than those who already know the facts. It seems to me, however, that the risk of some wider identification may have to be accepted on occasions if the story is to be told in a manner which will engage the interest of the general public.""
"whilst persons who give evidence in child proceedings can normally assume that their evidence will remain confidential, they are not entitled to assume that it will remain confidential in all circumstances."
Discussion: disclosure to the Minister of State, the Solicitor-General and the member of Parliament
Discussion: the position of the BBC
"unless injuncted by the court, the BBC is entitled to broadcast. It is for those seeking to obtain an injunction to establish their case and to do so convincingly. If they cannot establish that case then the BBC is entitled to broadcast."
And that, as I have pointed out, is now underscored by section 12(3) of the Human Rights Act 1998: see Re Roddy at paras [23]-[24], [75].
"Mr Arnot invited me to make an order requiring [the newspaper] to file with the court and serve on the local authority a copy of each article that it proposes to publish. I would in any event have declined to do so. I am not aware of any case in which such an order has been made and I can think of no case other than In re W (A Minor) (Wardship: Restrictions on Publication) [1992] 1 WLR 100 in which a newspaper has volunteered an article in draft. In my experience both the print and the broadcast media usually decline to share their story with the court in advance of publication or broadcast."
Discussion: the position of the mother and Ms Sarah Harman
Orders
"UPON considering and without prejudice to
Section 12 of the Human Rights Act 1998,
Section 12 (1) of the Administration of Justice Act 1960;
Section 97 (2) of the Children Act 1989
Duration of order
(1) This order is to have effect until 28th October 2017 (the eighteenth birthday of the child whose details are set out in the first Schedule) ("the child") or until further order in the meantime.
Who is bound by this order
(2) This order binds all persons including the First and Second Respondents (whether acting by themselves or by their servants or agents or otherwise howsoever) and all companies (whether acting by their directors or officers, servants or agents or otherwise howsoever) who know that this order has been made.
Restrictions
(3) Subject to paragraph (4) this order prohibits the publishing in any book, magazine or newspaper or broadcasting in any sound or television broadcast or by means of any cable or satellite programme service or public computer network ('publishing') of:
(a) the name and/or address of:
(i) the child;
(ii) any school or other establishment in which the child is residing or being educated or treated (an 'establishment'); or
(iii) any natural person having the day-to-day care of the child (a 'carer'); or
(iv) the paternal grandparents of the child being the persons whose names and addresses are set out in the second Schedule;
(b) any picture being or including a picture of either (i) the child or (ii) either of the grand parents;
(c) any other matter calculated or likely to lead to the identification of the child as being the child of the First and Second Respondents and the grandchild of the paternal and/or maternal grandparents and the niece of ;
(d) any matter calculated or likely to lead to the identification of any doctor who has given evidence in these proceedings (a 'doctor').
(4) Paragraph (3) of this order only prohibits publication in a manner calculated or likely to lead to the identification
(a) of the child as being a child involved in proceedings before the Court in which powers under the Children Act 1989 were exercised by the Court with respect to the child; or (as the case may be)
(b) of a doctor as having given evidence in proceedings before the Court in which powers under the Children Act 1989 were exercised by the Court with respect to the child.
(5) Save for service of this order in accordance with para (8) below, no publication of the text or a summary of any part of this order (or any other order made in the proceedings) may include any of the matters referred to in para (3) above.
(6) This order prohibits soliciting any information relating to the child (other than information already in the public domain) from:
(a) the child;
(b) any carer;
(c) the parents or either of them;
(d) either of the paternal grandparents;
(e) either of the maternal grandparents;
(f) any of the child's siblings or half-sibling;
(g) the maternal aunt of the child
What is not restricted
(7) Nothing in this order shall of itself prevent any person:
(a) publishing any particulars of or information relating to any part of the proceedings before any court other than a court sitting in private;
(b) publishing anything which at the date of publication by that person has previously been published (whether inside or outside the jurisdiction of the court) in any newspaper or other publication or through the Internet or any other broadcast or electronic medium to such an extent that the information is in the public domain (other than in a case where the only publication was made by that person);
(c) enquiring whether a person is protected by para (6) above;
(d) seeking information from any person who has previously approached that person with the purpose of volunteering information;
(e) soliciting information relating to the child while exercising any function authorised by statute or by any court of competent jurisdiction.
Service
(8) Copies of this order endorsed with a penal notice be served by the Applicant Local Authority.
(a) on such newspaper and sound or television broadcasting or cable or satellite programme services as the Applicant may think fit in each case 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 or cable or satellite programme service; and
(b) on such other persons as the Applicant may think fit in each case by personal service.
Further applications about this order
(9) The parties and any person affected by any of the restrictions in paras (3) to (6) above are at liberty to apply on no less than 48 hours notice to the parties."
"THE JUDGE stating
(1) that it is an express condition of the disclosure of the documents listed in the First Schedule to this order permitted by paragraph 1 of this order that the General Medical Council shall unless otherwise authorised or directed by order of this court at all times comply with the provisions of the Second Schedule to this order;
(2) that the fact that the mother is being given leave to disclose into the public domain the matters referred to in paragraph 2 of this order is not to be understood as any recognition by the court of the accuracy of what the mother is saying; and
(3) that this order is made without prejudice to (a) section 12 of the Administration of Justice Act 1960, (b) Section 97 of the Children Act 1989 and (c) the order made in these proceedings by Mr Justice Munby on 1st March 2004
AND UPON the mother undertaking to the Court:
(1) that she will not, by herself or by encouraging or instructing any other person to do so publish or cause to be published or transmitted:
(a) any information leading to the identification of the child concerned as being a child who is the subject of the legal proceedings herein;
(b) any part of the evidence filed in the case herein, including any oral evidence given in the proceedings;
(c) any part of any reports filed or judgments given in the proceedings herein;
(d) any part of any skeleton arguments, case summaries or prιcis of any court documents or evidence
SAVE as specifically permitted by the order herebelow;
(2) to serve a copy of this order on the General Medical Council at the same time as she discloses any documents in accordance with paragraph 1 of this order;
IT IS ORDERED THAT:
1 There be leave to the mother (and insofar as she does not do so leave also to either of the doctors) to disclose the documents listed in the First Schedule below to the General Medical Council for the purposes of pursuing her complaint against [Dr Y and Dr X].
2 There be leave to the mother (and any other person who may wish to do so) to disclose the following matters into the public domain:
(a) The child suffered rigors while an in-patient in hospital in 2001.
(b) The mother was found by the court to have deliberately administered an unidentified infected substance to the child, thereby causing the rigors which were potentially life threatening while the child was in hospital in 2001.
(c) The evidence in support of that finding was circumstantial.
(d) Nowhere was the substance identified.
(e) [Dr Y] was the jointly instructed paediatric expert in the case.
(f) [Dr Y] did not see the mother or the child for the purposes of his assessment.
(g) [Dr Y]'s experience was based in part on research undertaken with Professor Sir Roy Meadow.
(h) [Dr Y] had no expertise of fabricated disease in the field 'Fabricated or Induced Illness' syndrome / Munchausen Syndrome by proxy, but supported the finding.
(i) Other experts were of the view that there was no known cause for the rigors.
(j) Senior staff at the hospital considered it unlikely that the mother would have had the opportunity to administer the substance.
(k) The judge found that the mother had lied about a number of matters.
PROVIDED that (i) nothing in this order shall authorise the mother or anyone else to publish or disclose the name of [Dr Y] and (ii) in any disclosure made pursuant to this paragraph [Dr Y] shall be referred to as "Dr Y".
3 There be leave to the mother to disclose the document appended to this order marked [LB1] (being an edited extract of a letter from the key social worker to the First and Second Respondents dated 11th February 2004) into the public domain.
4 There be leave to any of the parties and to [Dr Y] [Dr X] and the General Medical Council to apply (a) to vary this order and (b) generally.
THE FIRST SCHEDULE
(a) The judgment of Mrs Justice Bracewell DBE (10th January 2003).
(b) The judgment of Mr. Justice Holman (12th September 2003).
(c) The letter of instruction to [Dr Y] dated 4th December 2001.
(d) The reports of [Dr Y] dated 29th March 2002, 9th May 2002, 12th November and his e-mail of 15th April 2002.
(e) The Transcript of the oral evidence of [Dr Y] given on 16th December 2002.
(f) The reports of [Dr X] dated 17th October 2001, 8th January 2002, 9th May 2002.
(g) The transcript of the oral evidence of [Dr X] given on 10th and 11th December 2002.
(h) Transcript of telephone conversation (experts meeting) 9th October 2002.
(i) The Closing Submissions of Counsel for the mother dated 4th January 2003.
(j) The mother's notice and grounds of appeal to the Court of Appeal from the judgment of Mrs Justice Bracewell DBE.
THE SECOND SCHEDULE
(1) The documents listed in the First Schedule to this order are and shall remain at all times confidential.
(2) Save with the prior leave of this court:
(a) no part of the documents shall be read into the public record or otherwise put in the public domain;
(b) nothing shall be published that might lead to the identification of any of the persons (other than the doctors) referred to in the documents;
(c) the General Medical Council shall not disclose any of the documents or communicate any information contained in them to any other person; and
(d) no information contained in the documents shall be disclosed at any public hearing or published in any public record of the proceedings of the General Medical Council."
