Local Authority v Health Authority & Anor

The application before me is an unusual one. The applicant local authority, represented by Mr Roger McCarthy QC, wishes to publish a report (the Report), commissioned by the local Area Child Protection Committee (the ACPC) as a result of care proceedings taken by the local authority in respect of 6 children. The initiation of the care proceedings disclosed matters which the ACPC felt were of sufficient public concern for it to set up an inquiry and invite experienced professionals to investigate and to report. There are objections to the publication of the Report by the principal person involved (Ms A), represented by Mr Allan Levy QC and Miss Joanna Hall, by the Official Solicitor representing several children but more important a group of vulnerable adults, represented by Miss Angela Hodes, and by the NHS Strategic Health Authority represented by Mr Richard Booth. Mr Richard White attended on behalf of an adoption charity, the Agency, and I permitted him informally to make written and oral submissions.

There is a long and complicated history to the background to this application both in relation to the extremely lengthy care proceedings heard over a period of 6 months by Hughes J and to the subsequent inquiry. Ms A, who is now 64, over many years acted as a foster mother to children with particular difficulties, first in London and then in a large property in the country (the Home). She became a most valuable source of help to many local authorities. Most of the children she fostered, she later adopted and she eventually drew under her wing a large family of vulnerable young people, some of whom were adopted by her in their late teens. Most of those she adopted or fostered remained with her after becoming adults. At least two were married there and the children of some residents also lived there. A few vulnerable young people came to live with her when they were already grown up. She collaborated in a book written about her work over many years with these children and young people.

The Home in the country became full of children of all ages and she was assisted by a nursing friend and a mother and daughter and Ms B, who herself suffered from psychiatric problems and was a vulnerable adult. Ms A had rescued her when she was a teenager and allowed her to play a major part in the running of the home. The judgment of Hughes J, handed down in open court on the 23^rd February 2001, sets out in some detail the advantages and disadvantages of the Home and those who managed it.

As a result of investigations into the management of some of the children then living in the Home, on the 26^th November 1998 the police and social services entered the Home of Ms A and removed 12 children and encouraged the vulnerable adults then living there to leave. The local authority then commenced care proceedings in respect of those children but subsequently withdrew them in respect of the 6 eldest. In December 1998 the ACPC commissioned a panel (the Panel) to sit on an inquiry into the management of the Home and to report to them and drafted the terms of reference, which were later amended. For various reasons the Panel did not begin its task until November 1999 and completed it in September 2002. In the care applications running parallel to the inquiry, Hughes J granted injunctions against publicity on the 22^nd February 1999. In the first part of the court proceedings the judge heard evidence from 150 witnesses over seventeen and a half weeks. He gave his first judgment in private on the 16^th March 2000. He found that the threshold criteria under Part IV of the Children Act 1989 had been met and held a further ‘disposal’ hearing in May 2000 and gave his second judgment in private on the 17^th May. The judgments were however published on the internet by Ms B who was a party to the care proceedings. She later received a suspended sentence of imprisonment for contempt of court.

On the 23^rd February 2001 Hughes J gave the judgment in open court, which was suitably anonymised. He gave his reasons for giving a judgment in public as

Over many years there were in all 13 local authorities involved in asking Ms A to look after their children.

To complete the picture, in October 2002 Coleridge J heard proceedings relating to a child who had been freed for adoption in respect of whom Ms A sought discharge of the freeing order and a residence order. She later withdrew her application for a residence order; the freeing order was discharged and a care order was made to the local authority by consent. At several hearings during 2001 and 2002, Coleridge J heard applications about the welfare of 4 young adults who had previously lived in the household of Ms A and approved that each of them should return to or continue to live with Ms A at the Home.

On the 23^rd April 1999 Hughes J made the first order allowing disclosure of documents filed in the court proceedings to the ACPC and to the Panel. His order carefully defined the documents to be released to the Panel for the purposes of the inquiry. On the 26^th May 2000 Hughes J made a second order giving more general leave to the local authority to disclose documents requested by the Panel. Further High Court proceedings came before Munby J in relation to the further release of documents. On the 10^th May 2001 Munby J gave permission for certain medical records to be disclosed to the Panel and imposed limitations upon the general use of the medical information. This order was varied on the 22^nd January 2002. In each order it was clear that the disclosure was specific and limited. There have been other orders in relation to disclosure of documents to which it is not necessary for me to refer.

The issue of publication of the Report was then listed before me. It is in two volumes and I gave permission on the 17^th January 2002 to publish Volume 2 to the participating agencies and, I assume, to the Department of Health. Various chapters of Volume 1 were sent to 12 other local authorities involved in the inquiry and to the Agency and to the ACPC committee members. In September 2002 Volume 1 was completed and on the 27^th November 2002 the local authority sought permission from the High Court to publish Volume 1 to everyone. At a preliminary directions hearing on the 14^th January 2003 the local authority and the NHS Trust were present but other interested parties had not been served. I directed that Ms A and the Official Solicitor should be served. I gave further directions on the 29^th January 2003 with all the parties present except Mr White for the Agency. As a result of concerns of the NHS Trust over disclosure of medical records and of Ms A and of the Official Solicitor to the contents of Volume 1, enormous efforts were made during this year by the Panel and the local authority to try further to anonymise it and to meet the objections of the other parties. Despite those efforts they were unable to meet the objections of the Official Solicitor and of Ms A. The local authority now seeks to publish Volume 1 without any further restrictions. Ms A and the Official Solicitor oppose the publication in its entirety. The NHS Hospital Trust is no longer seeking major amendments and can, it appears be satisfied with minor changes. Mr White expressed his concern about those parts of Volume 1 which refer to the Agency.

The Official Solicitor represents both the 6 children who remained the subject of the proceedings and 5 of the 19 vulnerable adults who currently reside at the Home. All of them lived there during part of the period investigated by the Panel. The 5 adults represented by the Official Solicitor all have learning difficulties and come within the definition of patients in the Civil Procedure Rules, Part 21, rule 21(1)(2) and are unable to represent themselves. There are other adults living in the Home, some of whom are also vulnerable.

The claim form issued by the local authority and dated 27^th November 2002 set out that

“1.

The claimant applies for an order under the court’s inherent jurisdiction to permit it to publish the report of the Part 8 Case Review……

2.

The application is to be heard with an application in the Children Act on the same date. ……

The issues in the case are

Those issues require to be answered within the framework of the objections of the respondents to the local authority’s application to publish the Report.

The local authority chose to set up a review in a form recommended by the Department of Health in the 1991 guidance “Working Together under the Children Act 1989”, and amended in 1999 after the inquiry had begun and then entitled “Working Together to Safeguard Children”.

The guidance is based upon section 7(1) of the 1970 Act which states

“Local authorities shall, in the exercise of their social services functions, including the exercise of any discretion conferred by any relevant enactment, act under the general guidance of the Secretary of State.”

The 1970 Act was amended by the National Health Service and Community Care Act 1990, section 50 as follows by inserting section 7A

“(1)

Without prejudice to section 7 of this Act, every local authority shall exercise their social services functions in accordance with such directions as may be given to them under this section by the Secretary of State.

This is a guide to inter-agency working to safeguard and promote the welfare of children. It was intended to provide a national framework within which agencies and professionals at local level might draw up and agree upon their own more detailed ways of working together. The 1991 guidance did not deal with publication of reviews. The 1999 guidance is set out in greater detail and includes Part 8 which provides a suggested procedure for case reviews. The purpose of case reviews carried out under this guidance is to be found in paragraph 8.2 to

“establish whether there are lessons to be learned from the case about the way in which local professionals and agencies work together to safeguard children; identify clearly what those lessons are, how they will be acted upon, and what is expected to change as a result; and as a consequence, and

to improve inter-agency working and better safeguard children.”

Advice is given as to when an ACPC should undertake a case review. Where a child may have suffered potentially life-threatening injury or sustained serious and permanent impairment of health or development through abuse or neglect and the case gives rise to concerns about the way in which local professionals and services work together to safeguard children, any agency or professional may refer it to the ACPC chairman if it is believed that there are important lessons for inter-agency working to be learned from the case. Paragraph 8.8 sets out an useful list of questions to be asked in considering whether to set up a Part 8 inquiry. Certain procedures have to be followed as to whether the case does meet the case review criteria. The decision is taken by the chairman of the ACPC and it is the duty of the local authority to inform the Department of Health about every case that becomes the subject of such a review. The local authority gave notice of this case review to the Department of Health. The guidance recognises that reviews will differ widely in breadth and complexity but states that in all cases lessons should be learnt and acted upon as quickly as possible and that reviews should generally be completed within 4 months.

In paragraph 8.26 the ACPC, upon receiving the overview report should

“ensure that contributing agencies and individuals are satisfied that their information is fully and fairly represented in the overview report;”

In paragraph 8.27 in cases where serious abuse takes place in an institution or by multiple abusers, the same principles of review apply but may need more time.

Under the heading ‘Accountability and Disclosure’ paragraph 8.29 deals with those with an interest in the review and confidentiality. Paragraph 8.30 the guidance states

“…..In all cases, the ACPC overview reports should contain an executive summary that will be made public, which includes as a minimum, information about the review process, key issues arising from the case and the recommendations which have been made. Such publication will need to be timed in accordance with the conclusion of any related proceedings. The content will need to be suitably anonymised in order to protect the confidentiality of relevant family members and others.”

The local authority referred the cases relating to Ms A and the residents of the Home to the ACPC which decided to set up a Part 8 Review to look at the situation of the children who had lived in the Home and extended the Review to include the vulnerable adults. The ACPC received the two parts of the Report arising from the Review. Volume 2 was confidential and was sent to each individual agency that took part in the inquiry process, and Volume 1 was intended to be published. It is the contents of Volume 1 which raise the issues in the application before the court.

It is, of course, clear that the guidance from the Department of Health is intended to deal exclusively with safeguarding and protecting children and there is no equivalent guidance for vulnerable adults. It is equally clear therefore that the review conducted by the Panel and commissioned by the ACPC is not a Part 8 Review, although it is shown as such on the title leaf. The Terms of Reference are headed Part 8 Review and the Panel was required to examine and to report on the circumstances and the situation of the Home as a home for children and vulnerable adults.

In the Foreword to Volume 1 the Chairman of the ACPC said that the Review was begun in accordance with the 1991 guidance.

“Although not covered by the Working Together guidance, in conducting the review it was thought to be essential to consider the position of vulnerable adults in the household as many of the children with learning disabilities became vulnerable adults whilst living at an establishment known as the Home. The Review has been throughout treated as a Part 8 Case Review by everyone concerned with it. The Terms of Reference are headed “Part 8 Review” and specifically include the examination of the circumstances and position of the vulnerable adults as well as the children in the Home and to report on both groups to the ACPC.”

The Chairman of the Panel in the Introduction said that the Review had posed many difficulties. They were reviewing the histories of more than 80 individuals who lived with Ms A either in London or at the Home between 1984-5 and 1998 and there were agency reviews from 13 local authorities.

“ It was also evident that an Executive Summary, as required by ‘Working Together’, could not be presented in the conventional way. First, concise summary of points would have resulted in misleading over-simplification of a highly complex case. Secondly, some concrete illustration of the selected themes was essential to comprehend the essential arguments in the material. If the reader had access only to the conventional summary, without examples, it would have lacked credibility.

Hence, unlikely as it sounds, Volume 1 of this review is, in a sense, an Extended Executive Summary. ………

A second volume, which is confidential, contains detailed histories of individual children and adults and agency responses to their needs compiled from agency reviews that were commissioned. This has been circulated to the responsible agencies.”

The Report or extended executive summary is contained in 14 chapters together with recommendations in chapter 15 and runs to 607 pages including further recommendations and appendices. The recommendations are mainly general and non-specific. They include two recommendations about vulnerable adults in relation to chapters 6 and 2; recommendations about retention, storage, retrieval and other aspects of records; general recommendations about failures of inter-agency communication; accountability of agencies towards children fostered outside their areas; concerns about placement of children; improving social work practice in working together. There are specific recommendations on adoption, on registration of residential accommodation, on health, learning services for children educated at home, on the police and on the joint social worker/police exercise to remove the children from the Home on the 26^th November 1998.

In view of the complicated issues in this unusual case, I have felt it necessary to set out in some detail the written evidence and the submissions of the parties.

Mr Thomson, who is Head of the Legal Services Department of the local authority, has provided to the court a number of statements. In his first, dated the 27^th November 2002, he indicated that the local authority sought the permission of the court to publish Volume 1 since some of the information had been released to the Panel by the orders of Hughes J and Munby J. According to Mr Thomson, the chairman of the Panel had indicated that it was not possible to provide a summary, the view being that the whole report needed to be published. It was thought to be impossible to disentangle the parts which might or might not be subject to the court orders. He referred to the application of the local authority made both in the proceedings before Hughes J and in the exercise of the court’s inherent jurisdiction.

Mr Thomson said that the Panel was appointed under chapter 8 of the Working Together guidance. Given the importance of the recommendations of Volume 1 set out in Chapter 15 which had national implications, it was the expectation of the Department of Health that the Report would be publicly available. The local authority and the ACPC agreed and the Report was written with that expectation in mind. The inquiry had been extremely extensive and had involved an enormous level of public expenditure.

At the time of his first statement supporting the application of the local authority, Mr Thomson said that the Official Solicitor had been notified and the NHS Trust and probably the Agency was aware of it. Ms A had not been served with the proceedings nor made aware of them. He explained that only two chapters related to the information contained in the orders of Munby J. The role of the Agency was set out in detail in two chapters and he accepted that professionals would be able to identify the Agency. He had assumed that Ms A would oppose publication and had not felt it necessary to serve her.

In his second statement dated the 26^th June 2003, Mr Thomson set out the extensive revision carried out by the ACPC and by members of the Serious Cases Review Panel in an effort to respond to the criticisms of the Report. Despite the representations of the Official Solicitor a decision had been made that it was not reasonably possible to restrict Volume 1 to the minimum information envisaged by paragraph 8.29 of the Working Together guidance. It is clear from the revised text the parts that had been omitted or revised, and a great deal of factual detail and comments had been omitted. A supplementary explanatory report had been produced to enable anyone who felt s/he had been referred to in the main Report to seek confirmation. This was subject to the approval of the court.

In his second statement Mr Thomson also informed the court that about 95% of the Report was derived from sources other than that covered by the orders of Hughes J and Munby J. It was now thought possible to disentangle the protected material from the rest. He said that in 2000 the Panel held discussions about publication of the Report with the contributing agencies and the consensus was that Volume 2 would be published to the agencies and Volume 1, subject to anonymisation, would be generally published. The Department of Health was involved and took no objection.

Mr Thomson said that the Review was not intended to be a formal Part 8 inquiry but he accepted that it had come to be recognised as such. In any event the guidance was bound to be helpful and to be taken into account by the court. He pointed out that in the guidance there was no indication of what should be contained in the executive summary. An essential difference between Volumes 1 and 2 was that Volume 1 included as a main aim the need to publicise the general lessons which the Panel believed needed to be learned from the Review which included many of national importance. The Panel considered that it was essential that lessons were learned from what had happened to date. Any failings in the actions of the agencies should be open to public scrutiny and the public should not be deprived of proper accountability. The tax payers and voters in the area of the local authority had so far been deprived of an opportunity to assess what had been done with the high level of expenditure incurred in carrying out the Review. All the agencies and professionals involved in the Report thought it essential that it should be published. One issue was whether changes in primary or secondary legislation might be necessary consequent upon publication of Volume 1. The chairman of the Panel had said that it was not possible to produce an executive summary but Mr Thomson suggested that Volume 1 was in effect an extended executive summary. The first draft of Volume 1 was completed in June 2002 and between then and January 2003 the agencies and other professionals had had an opportunity to comment and the amended Report included their comments and corrections.

The evidence about the effect on the residents at the Home is to be found in a short statement made by Ms A on the 7^th March 2003. Its contents have not, to my knowledge, been challenged by the local authority. Ms A set out the adverse effects of the ‘raid’ on the 26^th November 1998 on members of the family at the Home. It was a highly traumatic experience for the whole family. Two of the children, now aged 8 and 12, have required psychiatric advice or extra therapy sessions. A third aged 12 has become nervous and anxious. After their return to the Home, the three children feared for a long time that they would be removed again and have a continuing fear and distrust of police and social workers. She also set out her concerns about the vulnerable adults, particularly those with Down’s Syndrome. They have become nervous of strangers, reluctant to go to new places and easily distressed. She said that the members of the family would not benefit from it all being aired in public more than 4 years later. In the conclusion to her statement Ms A said

“the events, which came to a head on 26^th November 1998, had a devastating effect on the children, the adults and vulnerable adults in my family and on me. Some of my children have put down in words what they went through and this was sent to the Panel along with my submission. This was not even acknowledged in the report. As I have tried to show, the events of 26^th November 1998 were only the beginning of the story. We have tried to come to terms with what has happened and to move on. We desperately need to draw a line under the past and get on with our lives. This will not happen if this report is published and these issues are all brought to the fore once again.”

The Official Solicitor provided a position statement, submissions and evidence about the litigation in which he represented the 5 vulnerable adults who are now living at the Home. One of them is autistic, two are twins and both suffer from Down’s Syndrome, as does a third young adult. The fifth young adult is also under a disability. The Official Solicitor did not adduce any specific evidence about their wishes or their present or future welfare.

The NHS Strategic Health Authority adduced no evidence.

Mr Levy’s submissions fell into two main parts.

Submissions on jurisdiction

Mr Levy submitted that the local authority did not have power under sections 111 and 137 of the 1972 Act to hold an inquiry. It was an inquiry under the provisions of section 7 of the 1970 Act which required the Department of Health guidance to be followed and an inquiry which included investigations about the needs of adults could not be held under the Guidance of “Working Together.” The Department of Health Guidance covered investigations into children and did not extend to adults. The Terms of Reference which specifically included adults were, he asserted, ultra vires the guidance which had statutory force by section 7 of the 1970 Act and were not covered by any authorisation which the local authority could properly give. Hughes J and the ACPC understood that it was a Part 8 Review and this was not just the question of methodology. Every document in the inquiry and in these proceedings, including the skeleton argument on behalf of the local authority, was headed Part 8 Review. The reality was that it was a Part 8 Review. The local authority was therefore restricted to carrying out a Part 8 Review, limited to a consideration of the children in the Home and to publish an executive summary which did not include the vulnerable adults. The parts of the Report which went outside the proper boundaries, were ultra vires and tainted, in his submission, the entire Report. Mr Levy asked the rhetorical question, if it was not a Part 8 inquiry what was it and what was its statutory basis? He submitted that the local authority did not have a discretion to set up any sort of inquiry. He described the Review as a ‘rogue inquiry’.

Submissions on breach of Article 8 rights

In the alternative, the local authority by purporting to hold a “Working Together” inquiry of an informal kind misled Ms A and her legal advisers and all the other parties to the Inquiry into believing that the part of the Report to be published would be a proper executive summary and not the very lengthy document, the subject of the objections. He considered that this was an issue which should be raised in judicial review proceedings and sought an adjournment in order to apply to the Administrative Court. This application was, in my judgment, raised at far too late a stage of the hearing, and I refused an adjournment. Mr Levy said that Ms A did not have the opportunity to have any involvement or representation in the preparation of the Report. Ms A had asked to be allowed to be heard without involving her lawyers but that request was rejected. She did not see the criticisms in the Report nor have any opportunity to respond to them. This submission seemed to me also to raise issues under article 6. But article 6 issues were not pressed on behalf of Ms A or indeed by any of those opposing the publication of the Report.

Mr Levy set out some instances and helpfully sent me further instances of inaccuracies and other matters contained within the Report or omitted from the Report with which he took issue. In the event I did not consider that it was necessary for me to set them out in detail. In some instances, Mr Levy suggested that the findings of the Panel went behind the findings of Hughes J in his judgment. There was also gratuitous mention of unnecessary matters and the introduction of damaging and unjustified material. The findings of Hughes J did not merit the degree of censure of Ms A in the Report. There had been an attempt to demonise Ms A and there was discussion about a cult and accusations were raised which were unfair. In concentrating upon Ms A and her family the Report spiralled out of control and did not look at the global picture or the extent to which Ms A had been a place of last resort for many local authorities faced with dealing with the most difficult children. It was significant in the light of the criticisms about Ms A that Coleridge J nonetheless made decisions that returned 4 of the vulnerable adults to the Home and to the care of Ms A. 30 years of Ms A’s life had been under a microscope for 4 years and the effect of publication, 5 years after the police raid, would be that she was still being scrutinised and a picture would be disclosed which would revive undesirable public interest. The Report did not concentrate on inter-agency working, the purpose of the Review. He queried the unnecessary detail of the Report. He submitted that the Report would interfere to a very significant degree with the private lives and the psychological state of mind of the residents and the private life of Ms A. He submitted that to publish it could not be shown to be necessary in a democratic society and would be disproportionate and irresponsible.

The Official Solicitor was firmly opposed to the publication of any part of Volume 1. Although the Official Solicitor only represented 6 children and 5 adults, he submitted that he had a general duty to protect the welfare of all those who were under a disability, a total of 25 people. The Official Solicitor’s position statement stated that the revisions undertaken by the Panel and the ACPC

“have not changed the intrusive and objectionable nature of the document that it is sought to publish.”

Miss Hodes was especially concerned with the focus on those still living at the Home and the likelihood of the Home being identified and consequently their identification as a group. The change of title of the Report did not provide sufficient anonymity. The Home was large and an unusual place and the only one of its kind in the county of the local authority. Identification of the local authority would immediately identify the Home. She pointed to Chapter 2 which gave a graphic and identifiable description of the Home. She pointed out that the majority of adults who had lived in the Home as children were given Ms A’s surname. The residents of the Home would be identified as a class and as individuals and they would be liable to intrusive publicity and prurient speculation. In the body of the Report allegations of a cult were raised, discussed and then discounted. The effect of telling the story of the Home would be to create the impression that the Home was an unnatural organisation.

Chapter 13 specifically concentrated on the position of the vulnerable adults, including the marriage of two of them and details about the way of life of them all. There were pejorative and muddled explanations and the allegations would lead to finger-pointing at the way in which these vulnerable adults were living. This would be unacceptable intrusion. The Official Solicitor was concerned about the vulnerable adults, whom he specifically represented, who had been required to move out of the Home and had only just returned. A period of stability was needed and there was a high risk of destabilisation. Even if Chapter 13 was removed (which was not suggested) the Report remained centred on the family and not on inter-agency working, and the Home would be brought to public attention even if not directed specifically at the vulnerable adults. The people living in the Home, both children and adults, needed protection and the court had a duty to protect them and to take positive action to do so.

Miss Hodes submitted that none of the providers of information nor the Department of Health nor Hughes J was aware that this was not intended to be a formal Part 8 Review. The order of Hughes J granting leave to give documents to the panel was on the assumption that it was a Part 8 Review. She suggested that, despite the editing and further amendments, the focus of Volume 1 remained on Ms A and the residents at the Home rather than on a review of agency policy and professional practice. Miss Hodes questioned why the Report included irrelevant, intrusive and unnecessary details. For instance, why was it necessary to investigate the capacity of the vulnerable adults to contract marriages? She suggested that the form of the Report was a legal foray into an unnecessary investigation and would undoubtedly stimulate Press intrusion which had already happened in the past and had been most upsetting for the residents. She said that publication would be in breach of the right to privacy and to respect for the family life of those people living in the Home in that there was a real and significant risk that publication at this time would destabilise the protected placements and would directly affect the upbringing of the children and the way of life and personal relationships of the vulnerable adults. To publish the Report as it stood with the probability of identification would be unjust to the children and in particular unjust to the vulnerable adults living in the Home. The continuing public interest surrounding this extended family would not abate if Volume 1 was published and the publication would be invasive and disproportionate. Confidential medical and personal information about their lives should not be published.

The individuals referred to in the Report including Ms A had not been consulted about the contents of the Report. The Official Solicitor should have been consulted before the Report was written. She submitted that the court did have an obligation to examine the whole of Volume 1 in order to decide whether it was an interference with the article 8 rights of the residents in the Home. The local authority had sought permission from the court for the entirety of the Report to be published and only at the last moment suggested that the permission of the court was required only for a small part of it.

In carrying out the balancing exercise between articles 8 and 10 there was a distinction to be drawn between the right to publish enjoyed by the Press and the position of the local authority. The local authority did not have the right to collate and then to publish whatever it chose to publish. It had to be mindful of the purpose in publishing a Part 8 Review and what was proportionate to its aim in the publication. The Review should be bound by the guidance set out in Part 8. The purpose of an executive summary was to achieve the aim of showing the lessons to be learned without breaching the article 8 rights of those who would be adversely affected by its publication. The local authority had failed to show that there was a legitimate public interest in the publication of the entirety of the Report or that the impetus for public debate was a necessary, relevant and proportionate interference with the article 8 rights. The Official Solicitor had written expressing concern that an executive summary was not being produced. There was no reason why an executive summary could not be prepared in line with the guidance. In her submission the answer to this application was to refuse leave to publish and the Panel could well provide an executive summary which would be the most economical and practical way of dealing with this issue.

The Health Authority had provided information to the Inquiry and had received a copy of Volume 2 of the Report. Mr Booth played a minor part in the application before me and did not seek to prevent the publication of the Report. The Health Authority was concerned about the confidentiality of the medical records produced both in the care proceedings and to the inquiry. He was content, however, to discuss with the local authority further amendments to the Report which would meet the objections of the Trust in relation to medical reports of those who were or had lived with Ms A.

The Agency played a part in placing children with Ms A. It made submissions to the ACPC and received a copy of Volume 2 of the Report. The Agency received a copy of Volume 1 and expressed its reservations in two letters of the 2^nd May 2003 and 15^th July 2003. Although the name of the Agency was anonymised in Volume 1, in the view of Mr White and accepted by the local authority, it was a thin veil in the light of its nature. It was a pioneering agency and the only adoption agency singled out and it was easily identifiable. He also suggested that it was unnecessary to emphasise in the year 2003 the shortcomings of the period 1979 to 1983. There were inaccuracies which had not been corrected by the final amended version of the Report and were damaging to the Agency. It was particularly concerned to carry on the work of placing children for adoption and its post-adoption work. The publication of the story would, in his view, have an adverse effect on the work of the Agency.

The Agency had understood that, in providing an independent review, the final report would draw on its material and that the lessons to be learned were important and appropriate for wide dissemination. Until these proceedings were started, the Agency was unaware of the comments made by Volume 1 of the Report. It had understood that this was a Part 8 Review and would be subject to the guidance. The common practice was for the review to be an executive summary which this draft Report was not intended to be. The Agency had not understood that there would be an intention to publish in detail to the whole world. Mr White said that the advice he gave to the Agency would have been different and the Agency would have been cautious in co-operating with and in disclosing information to the Panel if it had been appreciated that the Report would be of this kind. He submitted that the lessons to be learnt from this case did not require a public report of the nature of the current draft. Disclosure for a limited purpose was justified but within the ambit of an executive summary.

Powers of the local authority to hold inquiry

Mr McCarthy submitted that the Local Government Act 1970, section 7 was not the source of the power of the local authority to hold an inquiry. Section 111(1) of the Local Government Act 1972 gave local authorities a wide discretion to carry out their statutory functions which included holding inquiries. Section 137 gave local authorities the power to incur expenditure in respect of their functions carried out under section 111. Section 7 of the 1970 Act obliged the local authority to act under guidance from the Department of Health. It did not create the functions in the first place. Schedule 1 of the 1970 Act identified the functions of the local authority. The 1972 Act however was the consolidating Act which provided the local authority with its powers to act. He also referred to the Local Government Act 2000 which repealed section 137 and replaced it with provided similar powers under section 2. Section 7 of the 1970 Act provided the guidance for the procedures and methodology of a Part 8 Review.

Form of the Inquiry

The Terms of Reference and the Introduction to the Report made it entirely clear that it was not only a Part 8 Review. Mr McCarthy accepted that giving the inquiry the nomenclature of a Part 8 Review may have been confusing but the title was not significant. The Panel was an independently constituted body. The members had an enormous task which they carried out with professional integrity. They made trenchant comments which might make them professionally unpopular. They had not been given the task of writing an executive summary and they did not do so. He pointed out that the Terms of Reference did not refer to an executive summary. They were aware that the Report would be published but were not responsible for the publication. That was the concern of the ACPC. The view of the members of the Panel was that they could not, on the special facts of this inquiry, write an executive summary. The Panel had now dispersed and it was not feasible nor desirable at this stage to publish an executive summary.

Mr McCarthy defined the different functions of Volume 1 and Volume 2. The purpose of Volume 2 was to collate the reviews of each agency and to provide a critical analysis of past and future procedures with recommendations. All the participating agencies had received copies of Volume 2 after permission to do so had been given by the court on the 17^th January 2002. He submitted that the purpose of Volume 1 was to make general recommendations in order that lessons might be learnt nationally. There were general questions of significance and lessons to be learnt by agencies other than those engaged in the Review. The Terms of Reference were discussed and agreed with the Department of Health. Normally the local authority would check the question of publication with the Department of Health and this local authority did so. The two parts of the Report were not designed to and could not do the same job. The recommendations in Volume 1 were much more extensive than those in Volume 2. The suggestion that the focus was on the family and not on the agencies was incorrect and was shown to be wrong by the breadth of the conclusions and the recommendations.

Mr McCarthy argued that there was no specific restriction placed by Hughes J in his second order (see above) upon the use to be put by the Panel of the material released. Much of the information about Ms A and the residents at the Home was already in the public domain. He referred to the book published about the Home which was described as being true, although Ms A had said that it was fictionalised. The book was clearly published with the full co-operation of Ms A. There had also been extensive media coverage and residents had participated in the publicity.

Protected material

Mr McCarthy submitted that it was now possible to draw a dividing line between the limited amount of protected material, the subject of court control through the orders of Hughes J and Munby J, and the rest of the material in Volume 1. The protected material was, of course, subject to contempt proceedings if published. He submitted that the local authority had the right to publish 95% of the material even if permission was refused by the court, since the major part of the material lay outside the area which would be covered by contempt proceedings. The major part of the material came from information provided to the inquiry, the judgment given in public by Hughes J, material already in the public domain from press coverage and the book to which Ms A had extensively contributed. Other than the protected material there were no grounds upon which a court had the jurisdiction to restrain publication. Furthermore no applications had been made by any of the parties for orders to restrain publication and no evidence adduced to support the opposition to the applications made by the local authority.

Article 8 and confidentiality

Mr McCarthy submitted that there was a burden on those relying upon article 8 to demonstrate an existing right of action for the article 8 issues to be raised. In the case of adults in these circumstances it would be likely to be the law of confidentiality. To grant an injunction to Ms A would be outside the principles in the line of cases based on breaches of article 8 as contrary to the tort of breach of confidence such as in Thompson and Venables v News Group Newspapers Ltd [2001] 1 FLR 791 and A woman formerly known as Mary Bell v O’Brien and News Group Newspapers Ltd [2003] 2 FCR 686. Those were exceptional cases. Ms A had had an opportunity to comment on the Terms of Reference but the criticism of the non-involvement of Ms A in the inquiry had to be accepted. It was relevant but not determinative of the issue. The local authority gave its reasons for not involving her. No issue which might arise under article 6 had been relied upon by Ms A. She had made no application for a specific injunction and within the local authority application she had to prove her case which she had failed to do. The public interest to publish in the present case was overwhelming.

Inherent jurisdiction

In the case of the six children Mr McCarthy accepted that the parens patriae or inherent jurisdiction of the High Court would be applied. He submitted that in matters concerning the care and upbringing of children the Children Act would apply and the welfare of the child was paramount. In other proceedings, such as issues of publicity, the question of welfare was not paramount. He suggested that children, like adults, had no special right to protection from publicity in cases where their welfare was not in issue. If there were questions surrounding harm to children the court would balance the provisions of articles 8 and 10. In the present case there was no evidence of potential harm to the children in the Home.

There was no evidence to substantiate the case that individual adults or the group of adults would be harmed by publicity. Although the Official Solicitor asserted that press intrusion would be harmful, no details had been adduced to support this assertion. There was no evidence of the assessment of the vulnerable adults, nor of evidence of past harm to them by publicity. On normal principles such evidence was required and its absence was significant. There was no evidence that publication would have a destabilising effect. There can be no assumption of harm in the absence of factual conclusions.

The Panel did not consider it necessary to involve the vulnerable adults in the inquiry process. It did not consider that the inquiry was focussing on them. The aim of the inquiry was to improve the lot of the class of person into which they fitted. He did not accept that individual adults were identifiable. He accepted that article 8 was engaged but it was necessary to take into account article 8(2) and whether to publish was necessary and proportionate. The court should allow the local authority as a public body an exercise of discretion in deciding whether to publish Volume 1.

Local authorities are creatures of statute and their powers are set out, inter alia, by the Local Authority Social Services Act 1970 (the 1970 Act), the Local Government Act 1972 (the 1972 Act) and the Local Government Act 2000. Inquiries may be held in a variety of ways. Under section 7C of the 1970 Act, the Secretary of State has power to cause an inquiry to be held where he considers it to be advisable. The inquiry with which I am concerned was not set up by the Secretary of State but by the local authority and the ACPC. I agree with the submission of Mr McCarthy that the local authority had the power to initiate the inquiry in the form in which it did. The local authority had wide powers exercisable under the 1972 Act, section 111(1) and the power to incur expenditure in respect of its functions under section 137. Local authorities also depend upon guidance issued by the Department of Health, see the 1970 Act, section 7. There appears to me to be no obstacle to a local authority holding an inquiry in any form consistent with the appropriate guidance from the Department of Health and its overall statutory duties. I do not agree with Mr Levy that the local authority acted ultra vires its powers in the form of the inquiry which it commissioned. The decision to use the model of the Part 8 Review, following the Working Together Guidance and adapting the inquiry to include the vulnerable adults was within their powers. The local authority in its Terms of Reference and the Panel at the outset made it clear that the scope of the inquiry went beyond the Department of Health guidance. The problem arose in describing and treating the inquiry throughout as a Part 8 Review, even in the wording of the orders of Hughes J and in the claim form filed by the local authority in the present proceedings. It led everyone connected with the Review to believe that the inquiry would be conducted in accordance with the Part 8 guidance and falling within its requirements. The participants in the review process, including even the local authority and the Panel, appear to have been lulled into the belief that the inquiry was actually being held under Part 8. Certainly the contributing participants seemed to have assumed that at the conclusion of the inquiry an executive summary would be published. The misdescription of the process does not of itself, in my view, invalidate the basis of the inquiry nor demonstrate that the local authority had exceeded its statutory powers nor that the Report was based upon a procedure which was ultra vires the powers of the local authority. The question whether any of those who contributed were misled might be relevant to the other issues which arise but do not undermine the power of the local authority to commission an inquiry which did not fall within the guidance set out in Part 8 of ‘Working Together’. I am therefore satisfied that the local authority had the power to set up the inquiry and commission the Report.

The claim by the local authority invoked the inherent jurisdiction of the High Court in respect of the entirety of Volume 1 of the Report. The application now put forward by Mr McCarthy on behalf of the local authority was to the effect that I had a limited jurisdiction to exercise in this case, limited as it was by the scope of the orders made by Hughes J and Munby J, and as I understand the final submissions, I have no jurisdiction to restrain the local authority from publishing all but a tiny portion of the full Report contained in Volume 1. The approach of the local authority has therefore changed from a request to the court to exercise its inherent jurisdiction to give the local authority permission to publish the Report in its entirety. It is now asserted that only about 5% of the Report includes the ‘protected’ information subject to court orders. The remaining 95% is not subject to any restriction the court might wish to impose, and its publication requires no direction or approval of the court. If Mr McCarthy is right in his submission as to my jurisdiction and only 5% of the Report is covered by court orders, my task is relatively simple since all I would have to decide is whether the orders of Hughes J and Munby J designed to protect the children and the vulnerable adults should be continued beyond the period of the court proceedings.

Mr Levy and Miss Hodes, however, have both stressed that the whole of Volume 1 is subject to the control of the court. I must therefore consider the other 95% of the Report and whether the inherent jurisdiction of the High Court can apply to it and, if so, in whose favour. The jurisdiction is carefully and cautiously applied by judges in circumstances in which the welfare of those to whom the inherent jurisdiction applies positively require its exercise for their protection. The question has to be asked - on behalf of whom could and should the inherent jurisdiction be exercised by the court?

The principles underlying the inherent jurisdiction are long established and have been applied over the centuries for the benefit of those under a disability, both children and, as then it was once termed, lunatics. In respect of both categories the inherent jurisdiction was originally derived from the parens patriaejurisdiction of the Crown and exercised on its behalf by the Lord Chancellor. Lord Hardwicke, LC, in Butler v. Freeman [1756] Amb. 302.stated that

“[the court] has a general right delegated by the Crown as pater patrice, to interfere in particular cases, for the benefit of such who are incapable to protect themselves.”

Lord Eldon, LC, in Wellesley v. Duke of Beaufort (1827) 2 Russ 1, said at page 20

“… it belongs to the King as parens patriae, having the care of those who are not able to take care of themselves, and is founded on the obvious necessity that the law should place somewhere the care of individuals who cannot take care of themselves, particularly in cases where it is clear that some care should be thrown around them.”

It is clear, therefore, that it could not be applied for the benefit of the local authority nor indeed for the benefit of Ms A, the Health Authority nor the Agency.

I turn now to each of the parties opposing the publication of Volume 1. Mr McCarthy has pointed out with some force that the only applications made in this case have been by the local authority and no application to restrain publication has been made by any of the parties. He is correct also to point out that this is more than just a pleading point and that a limited amount of evidence has been provided by the Official Solicitor.

It is clear that the inherent jurisdiction of the High Court cannot be invoked to protect Ms A who is an adult and not under a disability. Article 8 of the European Convention has been prayed in aid of Ms A’s case. But article 8 cannot stand alone nor can article 10. Each requires to be applied in the context of existing recognised categories of cases. Unless I am to extend the cases of protection of confidentiality or privacy to the facts of Ms A’s case, there appears to be no grounds upon which I can deal with her objections to the publication of the Report. The cases in which the law of confidentiality has been applied have been so far been exceptional in the protection of the privacy of an individual. Clearly Ms A is not in the same class of case as Thompson and Venables (see above)or Mary Bell (see above). The parties did not address me on the line of cases such as Douglas v Hello! Ltd [2001]2 All ER 289; A v B(a company) [2002] 2 All ER 545; Campbell v Mirror Group Newspapers Ltd [2003] 1 All ER 224; Douglas v Hello! Ltd and others (No. 3) [2003] 3 All ER 996. In my judgment the case for Ms A does not begin to support the extension of the law of confidentiality in her favour, taking into account her rights under article 8. I do not therefore consider that I have the jurisdiction to restrain publication for her benefit.

If I had jurisdiction which I consider I do not have, in the balancing exercise between article 10, freedom of expression, and article 8, right to respect to privacy and family life, I would unhesitatingly hold it would be disproportionate and contrary to the right to publish to make any order which prevented publication of Volume 1. Much of the story of Ms A and the Home have already been set out in the public judgment of Hughes J and in the book to which Ms A contributed. There is therefore much information already in the public domain. The orders of Hughes J and Munby J were clearly designed to protect those under a disability and not to protect Ms A. Interestingly no real objection was made on behalf of Ms A based on article 6 as to the failure to consult or inform Ms A about the proposed publication and I do not feel that I need to embark upon considerations of article 6.

I need not be further concerned with the position of the Health Authority. But in any event, I do not consider that I would have jurisdiction to restrain the publication of Volume 1 in its interests. Its concern is the confidentiality of the medical reports and the injunctions granted in respect of those medical reports were made in Children Act proceedings for the welfare of the children and adults under a disability and not for the Health Authority. It has not been necessary to consider any other cause of action in relation to issues relating to the medical records since no claim in confidentiality has been made by the Health Authority which is not pursing its opposition to publication.

I have considerable sympathy for the Agency. Mr Thomson accepted in his statements that its identity was thinly disguised. Insofar as the criticisms in the Report may be unjustified or the Agency may have been misled, redress does not lie in the present proceedings even if Mr White had regularised the position of the Agency by seeking formally to intervene. The court orders were not intended to protect the Agency nor are there issues of confidentiality in respect of which the Agency can rely upon article 8. The power of the court to invoke the inherent jurisdiction cannot, in my judgment, be extended to an adoption agency.

I turn now to the jurisdiction as it is applied for the benefit of children. Lord Redesdale, in Wellesley v. Wellesley (1828) 2 Bli NS 124, said at page at 130

“Now, upon what does Lord Sommers, upon what does Lord Nottingham, upon what does Lord Hardwicke, upon what ground does every Chancellor who has been sitting on the bench, in the Court of Chancery since that time, place the jurisdiction? They all say, that it is a right which devolves to the Crown, as parens patriae, and that it is the duty of the Crown to see that the child is properly taken care of.”

In 1968 in re L [1968] 1 All ER 20 Lord Denning MR at page 24, referred to Wellesley v. Duke of Beaufort and said

“Even if there was no property and the child was not a ward of court, nevertheless the Court of Chancery had power to interfere for the protection of the infant by making whatever order might be appropriate. That was made clear by Lord Cottenham, L.C. in Re Spence (1847) 2 Ph. 247where the infants were not wards and there was no property. Lord Cottenham, L.C., said:

‘I have no doubt about the jurisdiction. The cases in which this court interferes on behalf of infants are not confined to those in which there is property… This court interferes for the protection of infants, qua infants, by virtue of the prerogative which belongs to the Crown as parens patriae, and the exercise of which is delegated to the Great Seal.’

This wide jurisdiction of the old Court of Chancery is now vested in the High Court of Justice and can be exercised by any judge of the High Court.”

From 1971 the inherent jurisdiction in respect of children has generally been exercised by judges of the Family Division. The court has the power in certain circumstances to protect children from harmful publicity. Its scope and exercise have been considered by the courts under several categories. Munby J helpfully summarised them in Kelly v BBC [2001] 1 All ER 323 at page 341; [2001] 1 FLR 197 at page 216

“….in relation to the media the exercise of the court’s inherent parens patriae or wardship jurisdiction is divided into three parts: the first part, in which the jurisdiction is not exercisable at all and the child is left to whatever remedies against the media the law would give an adult in comparable circumstances; a second part in which the jurisdiction is exercisable, but in circumstances where, because the court is only exercising its ‘protective’ jurisdiction, the child’s interests are not paramount and where a so-called balancing exercise has to be performed; and the third part, in which, because the court is exercising its ‘custodial’ jurisdiction, the child’s interests are paramount.”

This passage was cited by Hale LJ in re S (A Child) [2003] 2 FCR 577, at paragraph 14. She said at paragraph 36

“…it is clear that the information must relate to the child or his carers and that its disclosure would be harmful.”

If the inherent jurisdiction is to be invoked in the present application to restrain publication, it falls within the court’s ‘protective’ jurisdiction and will be subject to the balancing exercise between article 8 and article 10. The principles set out in article 8(1) that

“Everyone has the right to respect for his private and family life, his home and his correspondence.”

are subject to the requirements of article 8(2)

“There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the rights and freedoms of others.”

The welfare of children is of paramount importance, see Yousef v Netherlands (ECHR App No 33711/96) [2002] 3 FCR 577, but children also have rights, see Marckx v Belgium (1979) 2 EHRR 330.

Equally the principles to be found in article 10(1) that

“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers……”

are subject to the requirements in article 10(2)

“The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

The court is, of course, a public authority, see section 6(3) of the Human Rights Act 1998. The court must also have particular regard, by section 12(4), to the importance of the Convention right to freedom of expression, although I doubt whether the Report can be said to be journalistic, literary or artistic material so as to require consideration of section 12(4)(a)(i) or (ii). The Court in deciding whether to exercise its jurisdiction to restrain publication has to consider both article 8 and article 10 as independent elements. Sedley LJ said in Douglas v Hello Ltd [2002] 1 FCR 289 at 324, [2001] 2 All ER 289 at 323

“Neither element is a trump card. They will be articulated by the principles of legality and proportionality which, as always, constitute the mechanism by which the court reaches its conclusion on countervailing or qualifying rights. It will be remembered that in the jurisprudence of the Convention proportionality is tested by, amongst other things, the standard of what is necessary in a democratic society.”

Lord Woolf LCJ said in A v B (a company)[2002] 2 FCR 158 at paragraph [6]

“There is a tension between the two articles which requires the court to hold the balance between the conflicting interests they are designed to protect. This is not an easy task but it can be achieved by the courts if, when holding the balance, they attach proper weight to the important rights which both articles are designed to protect. Each article is qualified expressly in a way which allows the interests under the other article to be taken into account.”

The first question in the balancing exercise between articles 8 and 10 is whether it is lawful for the court to intervene to protect the children. I have no doubt that I have the jurisdiction to decide in the present case to restrain the local authority from publishing Volume 1 of the Report if, and only if, I am satisfied that it is necessary and proportionate to do so in order to protect the rights and welfare of the children.

The local authority, in its claim sought permission to publish the Report, invoking the court’s inherent jurisdiction to regulate its own procedures. In my view the correct approach to this case is to assume the right of the local authority to publish unless or until the court is satisfied, for good reasons, that publication would be so disadvantageous to the children that the court is driven to restrain publication in whole or in part.

The objections of the Official Solicitor on behalf of the children clearly come within Hale LJ’s third category in re S (A Child) (above) in which the welfare of the children is to be balanced against the freedom of expression.

I turn first to the Report itself. It is clear that the information contained in the Report relates to the children but more particularly to their carers. The question which I have to answer is whether the disclosure of all the information in the Report would be harmful to the children and, if so, whether that harm is of such significance as to tip the balance against publication.

I consider that the criticism of the Official Solicitor directed at the contents of Volume 1 is well-founded. It is relevant to have in mind that the Review was not open to the public, but an internal overview of inter-agency co-operation. The Report is far from dispassionate or objective in its comments. It dwells at length on the story of Ms A and the residents of the Home. It raises questions such as the existence of a cult, and the suitability of the marriages of two residents. It provides emotive rather than factual descriptions of events and those involved in them. The telling of a sensational story has, in my view, taken over from an objective and summary analysis of an extraordinary situation. Although the recommendations appear to be admirable, I fail however to understand why it was necessary to write not far short of 600 pages of description in order to set out the recommendations. I also fail to understand why a group of able and experienced professionals were unable to write an executive summary within the broad guidelines of ‘Working Together’. It is particularly surprising since the Panel was purporting to act under the guidance of a Part 8 Review which assumes that there would be an executive summary at the conclusion of the inquiry. As the Panel recognised, its Report could not conceivably be so described. The guidance in Part 8 (see above) concentrated on the purpose of a case review and the Panel appeared to see itself as adhering to the spirit of the guidance. Paragraph 8.30 envisaged that the content would be suitably anonymised in order to protect the confidentiality of relevant family members and others.

I have no doubt that, if the Report is published in anything like its present form, it will attract a huge amount of media interest, much of it providing headlines for the tabloid press, which might well dwell on the more sensational and colourful passages which remain in the latest amended draft and would almost certainly prefer those parts to any detached or objective assessment of inter-agency failings. The inevitable consequence would be renewed press and media interest in the Home which would obviously be easily identifiable from existing information in the public domain. This would equally obviously result in visits to the Home which would be intrusive and probably distressing to many of those who continue to live there. In my view, this Report appears to have strayed far from the balanced guidance given in Part 8 whilst purporting to provide a Report within its guidelines.

In weighing the factors in support of publication it has to be taken into account that this inquiry considered a most unusual situation which demonstrated over many years serious failures within disciplines engaged in the protection and welfare of children and serious inter-agency shortcomings. These failures are clearly of sufficient importance to merit an inquiry and to entitle the public to know the relevant facts and where matters went wrong and not to have this information buried without publication. Another factor, stressed by Mr Thompson, was that the ratepayers of the local authority are paying for this inquiry and should know how their money has been spent. These are powerful arguments in support of publication of the facts in a suitable form in order to explain the recommendations of the Panel. It does not, however seem to me that it is, in itself, a powerful argument for publication of a report which, in its content, strays so far from the intention of its authors to write a report within the spirit of a Part 8 executive summary. I am, I have to say, surprised that it would not be possible even at this stage to produce a report which fulfilled the description of executive summary.

I am entitled to rely upon the statement of Ms A, which I do, as to the effect on several of the children who have returned to the Home. I am satisfied that publicity would be likely to have an adverse effect on children who are already vulnerable from the effect of the ‘raid’, having been removed in a somewhat dramatic fashion by the police and social workers, placed in care with foster parents and then returned to the Home. I take into account the effect on the media of the publication of the Report, written as it is in the terms I have set out above. They might be targeted by journalists or present when adults were targeted. There is a real and substantial risk that press intrusion would be disruptive to their care and adverse to their welfare. I consider that the publication of the Report is therefore likely to be harmful to those children now living in the Home. The children have a right to as much protection of their placement as can be achieved since they can only have been damaged by the moves and the circumstances of this long drawn out saga. The factors supporting the rights and welfare of these 6 children under article 8 and the right of the local authority to publish under article 10 have to be balanced. To interfere with the article 10 right of freedom of expression would be lawful and would be for the protection of the rights and welfare of these children. I have considered very carefully whether it would be a disproportionate response to the contents of the Report, having regard to the importance attached to it by section 12. I am, also, fully aware of the factors against restraining publication of Volume 1. I am satisfied, however, that, the balancing exercise comes down in favour of protection of the children and a restraint on the publication of Volume 1. I am reinforced in this conclusion by my strong view on the impact of the Report on the vulnerable adults to whom I now turn.

Lord Redesdale in Wellesley v. Wellesley (see above) said of lunatics at page 130

“Lord Sommers resembled the jurisdiction over infants, to the care which the Court takes with respect to lunatics, and supposed that the jurisdiction devolved on the Crown, in the same way. There is no particular law upon the subject; the law merely declares that the king has the care of the persons who are of insane mind, and that he is to take care of their property.”

The power of the High Court to act on behalf of adults under a disability, whether under the parens patriae jurisdiction or by Letters Patent under the Great Seal or by warrant, lapsed in 1959. The continuing basis for intervention by the High Court in order to protect the best interests of adults who lack the capacity to make their own decisions and come within the definition of patients in the CPR 21.1(2) is to be found in the principles set out by the House of Lords in the decision in re F (Mental Patient: Sterilisation) [1990] 2 AC 1. Lord Donaldson MR in the Court of Appeal said at page 13

“ …..the common law is the great safety net which lies behind all statute law and is capable of filling gaps left by that law, if and in so far as those gaps have to be filled in the interests of society as a whole. This process of using the common law to fill gaps is one of the most important duties of the judges.”

In subsequent cases the intervention has generally been limited to declarations that the proposed medical treatment or surgery would be lawful as in the best interests of the patient. In those cases the High Court has exercised its inherent jurisdiction with the welfare of the patient as the paramount concern of the court. The jurisdiction has also been applied in cases unconnected with surgical or medical treatment. In the case of re S (Hospital Patient: Foreign Curator) [1995] Fam 26 the question arose as to the welfare of an elderly man of 75 who had a stroke and was under a disability. The issue between the family and the plaintiff was whether he should live in Norway with his family or remain in England with the plaintiff who was unrelated to him. Hale J said at page 30 that if the court had jurisdiction at all it was to grant a declaration.

“ In this case the legal rights of S are clearly involved. He has the right not to have his bodily integrity invaded without his consent or some other lawful justification.”

Hale J held that she had jurisdiction to declare whether a course of action was lawfully justified as necessary in his best interests and her decision was upheld in the Court of Appeal, in re S (Hospital Patient: Court’s Jurisdiction) [1996] Fam 1. The Court of Appeal decision was mainly directed to the question of the locus standi of the plaintiff but Sir Thomas Bingham MR at pages 18-19 said that

“[I]n cases of controversy and cases involving momentous and irrevocable decisions, the courts have treated as justiciable any genuine question as to what the best interests of a patient require or justify. In making these decisions the courts have recognised the desirability of informing those involved whether a proposed course of conduct will render them criminally or civilly liable; they have acknowledged their duty to act as a safeguard against malpractice, abuse and unjustified action; and they have recognised the desirability, in the last resort, of decisions being made by an impartial, independent tribunal. …

“I have no doubt that the substantial issue in this case is a serious justiciable issue, involving as it potentially does the happiness and welfare of a helpless human being.”

Millett LJ at page 21 cited the passage from the speech of Lord Diplock in Gouriet v Union of Postal Workers [1978] AC 435 at page 501 that the jurisdiction of the court was not to declare the law generally or to give advisory opinions. He then said

“Since that decision the courts have developed the jurisdiction to grant declaratory relief in a number of cases which, though distinguishable from the present, are nevertheless not altogether dissimilar to it. We have now reached a position where the court is prepared in an appropriate case to fill much of the lacuna left by the disappearance of the parens patriae jurisdiction by granting something approaching an advisory declaration. In my judgment, the passage which I have cited from Lord Diplock’s speech in the Gouriet case [1978] AC 435, 501, can no longer be taken to be an exhaustive description of the circumstances in which declaratory relief can be granted today. It is to be regarded rather as a reminder that the jurisdiction is limited to the resolution of justiciable issues;….”

The matter was then remitted to Hale J who granted declarations, reported as re S (Hospital Patient: Foreign Curator) [1996] 1 FLR 167.

Thorpe LJ, in Re S(adult patient: sterilisation) [2001] Fam 15, after reviewing the position in Re F [1990] and the words of Sir Stephen Brown P in In re G (Adult Patient: Publicity) [1995] 2 FLR 528, said (at pages 29-30)

“It seems to me to be a distinction without a difference, by which I mean that the parens patriae jurisdiction is only the term of art for the wardship jurisdiction which is alternatively described as the inherent jurisdiction. That which is patrimonial is that which is inherited from the ancestral past. It therefore follows that whilst the decision in In re F signposted the inadvertent loss of the parens patriae jurisdiction in relation to incompetent adults, the alternative jurisdiction which it established, the declaratory decree, was to be exercised upon the same basis, namely that relief would be granted if the welfare of the patient required it and equally refused if the welfare of the patient did not.”

In re F (Adult: Court’s Jurisdiction) [2001] Fam 38, a local authority had removed T, a 17 year old girl with a mental age of five to eight from her home to a specialist children’s home. Once the girl was 18 the parents wished to remove her. The local authority sought to invoke the inherent jurisdiction of the High Court under the common law doctrine of necessity to keep her in local authority accommodation and to restrict and supervise her contact with her family. The judge held as a preliminary issue that the court had jurisdiction to hear a claim for declaratory relief. The Court of Appeal upheld the trial judge and held that there was a serious justiciable issue that required resolution in the best interests of an adult lacking the mental capacity to decide for herself. I said at page 42

“A declaration is, in many ways, a flexible remedy able to meet a variety of situations. In the present conflict, where serious question marks hang over the future care of T if returned to her mother, there is no practicable alternative to the intervention of the court.”

Thorpe LJ at page 52 referred to re A (Male Sterilisation) (above) and re SL (Adult Patient)(Medical Treatment) [2000] 2 FCR 452 and said

“ But, although those authorities establish the function of the court where jurisdiction is conceded they offer no guide as to the extent of the jurisdiction when it is disputed.

The determination of the ambit of the jurisdiction commences with the decision in re F (Mental Patient) (Sterilisation) (above) and the speech of Lord Goff. It is significant to see that amongst the illustrations that he offered is the case of permanent or semi-permanent mental disorder calling for a wider range of care. He said at page 76

“when the state of affairs is permanent, or semi-permanent, action properly taken to preserve the life, health or well-being of the assisted person may well transcend such measures as surgical operation or substantial medical treatment and may extend to include such humdrum matters as routine medical or dental treatment, even simple care such as dressing and undressing and putting to bed.””

Sedley LJ in his judgment drew attention to the imminent implementation of the European Convention on Human Rights as part of English law and its impact on issues such as that before the court. He them cited a passage from the European Court of Human Rights in Marckx v Belgium (above), that article (8)(1)

“does not merely compel the state to abstain from….. interference; in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective “respect” for family life.”

In the present state of the law as it affects T, it is upon the court and the local authority that any such positive obligation comes to rest.”

From the above decisions I draw the propositions that the circumstances within which a court will exercise the inherent jurisdiction through the common law doctrine of necessity are not restricted to granting declarations in medical issues. It is a flexible remedy and adaptable to ensure the protection of a person who is under a disability. It has been extended to questions of residence and contact. Until there is legislation passed which will protect and oversee the welfare of those under a permanent disability the courts have a duty to continue, as Lord Donaldson said in re F (Mental Patient: Sterilisation), to use the common law as the great safety net to fill gaps where it is clearly necessary to do so. Further, as Sedley LJ pointed out in re F (Adult: Court’s Jurisdiction), the European Convention adds an additional dimension to the exercise of the principles enunciated in the cases decided before the Convention applied. One consequence of the European Convention is the obligation upon the court as a public authority to take positive steps, as described in Marckx v Belgium.

I am satisfied therefore, despite the absence of any previously decided cases, that I can properly exercise the inherent jurisdiction of the High Court in order to consider whether I should restrain publication of Volume 1 of the Report. In the previous cases about adults under a disability, the issues have been the lawfulness of the proposed course of action and considerations as to their best interests. That cannot be the correct approach in the present case. The application of the inherent jurisdiction would seem more appropriately to be treated as the exercise of a ‘protective jurisdiction’ rather than a ‘custodial jurisdiction’. In considering whether the publication of the Report would be contrary to the welfare of the vulnerable adults, I propose to approach the issue by balancing their rights under article 8 against the rights given under article 10 and the emphasis given by section 12. In my judgment I have to balance those competing rights in the same way as I did with regard to the children.

All the criticisms I have set out above in relation to the content of the Report are equally relevant to the position of the vulnerable adults whom the Official Solicitor represents. I have information about them from the evidence of Ms A and the report of the Official Solicitor on the proceedings before Coleridge J. They were all obliged to move away from the Home where they had all settled. They have now returned to live at the Home. They have had considerable and distressing disruption of their lives and are, as set out in the Report, vulnerable. A period of peace, stability and a chance to settle down again after the very real upset of their lives is threatened by the likely intense media cover if this Report is published. They are all under some disability but not such, as far as I know, as to prevent possibly all of them, but certainly at least 4 of them, from understanding the impact of press and other media intrusion. That intrusion would affect their daily lives and would be very likely to be disruptive, distressing and contrary to the need for them to settle back in the Home. They clearly have rights under article 8 which are engaged and would be breached if the Report is published. I am satisfied that publication of the Report would be deeply damaging and detrimental to their welfare.

The factors supporting the rights of the vulnerable adults under article 8 have to be balanced against the right of the local authority to publish under article 10. I have found that it would be lawful on their behalf to interfere with the article 10 right of freedom of expression. I have considered very carefully whether to exercise the court’s discretion in favour of the vulnerable adults would be a disproportionate response to the contents of the Report, having regard to the importance attached to article 10 by section 12. I am also fully aware of the factors in favour of not restraining publication of Volume 1. I am satisfied, however, that the balancing exercise comes down in favour of recognising the importance of the protection of the vulnerable adults by the granting of a declaration to that effect.

As I set out above, I started this judgment on the basis that the local authority was entitled to publish the Report unless it could be clearly demonstrated that one or more of those parties objecting to its publication had made out a strong case that it should not be published. I am satisfied, for the reasons I have stated above, that Ms A has been unable to establish such a case. I am satisfied, however that both the children in the home and the adults under a disability have made out a strong case to seek an order restraining publication.

The position of the children is simple. I have the power to refuse to discharge the injunctions imposed by Hughes J and Munby J, and I do so. In my judgment, exercising the inherent jurisdiction of the High Court, none of Volume 1 in its present form should be published and I shall make the appropriate order to ensure compliance with my decision.

The position of the adults under a disability is not as simple as the position of the children. The appropriate mechanism adopted since the decision of the House of Lords in re F (Mental Patient: Sterilisation) has been the granting of declarations. I shall, after consultation with Counsel for the Official Solicitor, grant a declaration in line with my decision. By itself such a declaration does not bind the local authority not to publish. There has, however, been at least one previous decision in which an injunction was granted in a case dealing with adults under a disability. At the first hearing of re S Hale J granted an interlocutory injunction. She recognised at page 35 that there was

“a certain logical difficulty about granting a coercive order in proceedings where the relief sought is merely a declaration of the legal position.”

In that case the status quo was preserved by an injunction in negative terms. The grant of the injunction was not disapproved by the Court of Appeal, nor even, to my knowledge, considered by the Court.

What is required here is an injunction in negative terms, although not, of course, solely for a limited period. A declaration in the present case is of limited assistance for the protection of adults who are under a disability and are recognised as vulnerable by the local authority seeking to publish a Report which I have decided would be in breach of their article 8 rights and would be seriously detrimental to their welfare. In order to give adequate protection to the vulnerable adults, in my judgment I have to act positively and close the gap. I shall therefore grant an injunction restraining the local authority from publishing Volume 1 in its present form.