Norfolk County Council v Webster & Ors

These are care proceedings in relation to Brandon Webster, who was born on 29 May 2006. I have already sketched out the background in a judgment I handed down in public on 2 November 2006 and need not repeat what I said on that occasion: see Re Brandon Webster, Norfolk County Council v Webster [2006] EWHC 2733 (Fam) at paras [2]-[7]. However, in order to make sense of what follows I must add a little to that account.

Central to the allegations in the earlier care proceedings in relation to A, B and C were allegations that B had suffered non-accidental fractures at the hands of one or other or both of the parents. His Honour Judge Barham read and heard evidence from two experts, Dr D, a consultant radiologist, and Mr E, a consultant orthopaedic surgeon. He also read but did not hear oral evidence from two other experts, Dr F, a consultant paediatrician, and Dr G, a consultant community paediatrician. In substance the expert evidence, albeit with different shades of emphasis and certainty, all pointed in the same direction. In the judgment he gave on 21 May 2004, Judge Barham found that B had suffered six fractures in all: fractures to a rib, to both arms and to both legs. Those fractures had occurred on at least two occasions and possibly on more than two occasions. The experts ruled out all the various alternative possibilities that had been put forward by the parents to explain the fractures: osteomyelitis, osteogenesis imperfecta (brittle bone disease), poor nutrition and scurvy or rickets. The experts also rejected as plausible explanations of the fractures any of the following: parental restraint, the child getting a leg caught in a stair gate, or the injuries having been inflicted by child A (who at the relevant time, I might add, was not yet four years old). Judge Barham found that the injuries were non-accidental and that the only possible perpetrators were the parents.

In the further judgment that he gave on 24 November 2004, Judge Barham made additional findings against the parents. I need not go into the details, for I am going to direct that both of Judge Barham’s judgments be released into the public domain (see paragraph [61] below), but these additional findings were, on any view, much less grave than his findings in relation to the injuries to B.

The present proceedings were commenced by Norfolk County Council (“NCC”) on 8 June 2006. The proceedings were subsequently transferred first to the County Court and then to the High Court, where they have been allocated to Holman J in accordance with the President’s Practice Direction (Care Cases: Judicial Continuity and Judicial Case Management) appended to the Public Law Protocol [2003] 2 FLR 719.

An interim care order was made on 10 June 2006. On the same day His Honour Judge Curl, sitting as a Judge of the High Court, made an order imposing very drastic reporting restrictions. Addressed contra mundum (to the world at large), it prohibited, subject only to one minor exception, the publication of “any … information relating to” Brandon and the soliciting from the parents of “any information relating to [Brandon] or his parents”. Prior to that, on 16 May 2006, Pauffley J had made an order designed to protect the identities of A, B, C and their adoptive parents.

By an order he made on 17 July 2006, Holman J directed that the final hearing, with a time estimate of five days, was to be on 25 June 2007, with a pre-hearing review on 22 February 2007. Both are listed before Holman J as the allocated judge. By an order he made on 10 August 2006, Roderic Wood J extended the time estimate for the final hearing to 10 days.

On 28 June 2006 NCC had filed its threshold statement. (For the statutory tests of threshold for interim and final purposes see respectively sections 31(2) and 38(2) of the Children Act 1989.) Unsurprisingly, NCC’s threshold statement rehearsed Judge Barham’s findings in the earlier care proceedings. The core of NCC’s case was – and is – contained in the following two paragraphs:

“This was not a single issue case. Furthermore, the guardian outlined in her report to the court and it was referred to by the trial judge, that the parents were “unable to take professional concern seriously” and “it would not be possible for any essential changes to be effected to safeguard the children’s wellbeing and welfare.”

In view of the findings made by a competent court with relevant jurisdiction in 2004, it is NCC’s case that Brandon is at risk of significant harm in the form of physical abuse, emotional harm or neglect in the care of his parents. It is acknowledged, however, that is over 2 years since the findings in respect of [B]’s injuries were made, and over a year and a half since the conclusion of [A, B and C]’s care proceedings. Given the passage of time, NCC has decided to undertake further assessment of the parents and their parenting capacity.”

By the order made by Roderic Wood J on 10 August 2006, the parents were directed to file a position statement in respect of threshold criteria by 30 August 2006. They have not done so.

In accordance with directions given by Holman J in the order dated 17 July 2006 and by Roderic Wood J in the order dated 10 August 2006, the parents were given leave to instruct a consultant paediatric radiologist, Dr L, who was to be given access to all the relevant documents from the previous care proceedings. His instructions, in short, were to report on B’s X-rays. His report is dated 12 October 2006. His conclusions were clear and unequivocal:

“The fractures in this child are of the ‘classic metaphyseal lesion’ type and are highly specific injuries for inflicted injury. The number and distribution of fractures suggests all the child’s limbs were forcibly twisted on one or more occasions with enough force to cause the fractures. The degree of force is inconsistent with normal handling. The degree of force identified to cause these injuries is described as such that an observer would be clear that an assault had occurred. It is my opinion that a 4 year old would have insufficient strength to inflict these injuries on a 2 year old sibling. Indeed, significant force would have been required to inflict these fractures in a child of almost 2 years old who would be able to resist any painful stimuli …

These fractures suggest that he had been injured by one or more episodes of forcible twisting of the limbs and compression of the chest … There is no evidence to suggest that [B] suffered from an underlying bone condition that would predispose him to fractures of the kind found. I note the family history of OI, but find no evidence that [B] suffers from OI himself.

It is my opinion that the fractures could not have been sustained accidentally or by normal daily activities or be inflicted by a 4 year old sibling. No explanation has been provided for the injuries. It is my opinion on balance of probabilities that one or other of the parents inflicted these injuries.”

In May 2006 the mother had obtained a report from a consultant in clinical genetics. Previous DNA testing of one of the mother’s siblings had identified a specific mutation indicative of osteogenesis imperfecta (“OI”). But DNA testing of the mother showed that she does not carry this variant gene, so that “the risk of [her] being affected with OI is very low.” In short, the report indicated that the mother does not have OI. She is not a symptomless carrier.

Brandon and his parents were placed in a specialist residential unit for the purposes of intensive assessment. Envisaging that this assessment would conclude in the early part of November 2006, Holman J on 17 July 2006 directed that the matter was to be listed for one day on 3 November 2006 “for consideration of the interim care plan.” No doubt aware that he would be out on circuit, as in fact he was, Holman J directed that this hearing was not reserved to himself.

In accordance with directions given by Holman J in the order dated 17 July 2006 and by Roderic Wood J in the order dated 10 August 2006, NCC and the children’s guardian were given leave to instruct Dr M, a chartered clinical psychologist, for the purpose of conducting a risk assessment of the parents, and the parents were given leave to instruct Dr N, a consultant psychiatrist, for the purpose of conducting psychiatric assessments of them. Dr N made two reports, one in respect of each parent, both dated 25 August 2006. Dr M made two reports, one in respect of each parent, both dated 29 September 2006.

Dr N concluded that each parent’s current mental state is normal, with no diagnosable psychiatric disorder or personality disorder which would make a contribution to possible future risks posed by the parents. He suggested that further assessments can contribute to an understanding of potential future risk and that this is something to be explored further during the period between now and the final hearing in June 2007. He made this interesting observation:

“The parents are fully aware of being under scrutiny, and, while the previous media attention has been considered undesirable by the court, the attention is likely to facilitate the parents’ compliance and optimise the quality of parenting they provide to Brandon. The parents demonstrate a determination to ‘prove themselves’, and this internal drive is also likely to play a part in ensuring Brandon’s safe care.”

Dr M concluded that both parents have positive attributes indicating their capacity to care for Brandon successfully and competently, with professional monitoring and support. But he noted certain characteristics in both parents suggesting that they would benefit from psychological therapy. NCC accepts that Dr M’s assessments do not preclude either parent from being viewed as competent and capable to care for Brandon.

The final report from the residential unit dated 16 October 2006 shows that both parents have consistently demonstrated that they are able to provide good basic care skills for Brandon. NCC acknowledges that the care provided to Brandon by his parents within the unit has been very good. On the other hand, questions are raised in the report about the parents’ capacity and willingness to work openly and honestly with professionals:

“At this time neither parent will take professional concerns seriously from the past, they will not work openly and honestly with professionals within these proceedings, and have shown they can manipulate and divide … Both parents have shown that they cannot work with professionals in any meaningful or consistent way, once challenged or questioned about something they disagree with they will try to divide them, will fabricate stories and events, then deny saying this, putting the blame onto others.”

On 17 August 2006 the BBC had given notice that it intended to apply to vary Judge Curl’s order. On 18 October 2006 Associated Newspapers Limited, the publishers of the ‘Mail on Sunday’, made a similar application. Both applications came on for hearing before me on 26 October 2006. At the end of the hearing I reserved judgment. On 1 November 2006 I made an order which lifted many, though not all, of the reporting restrictions that had been imposed by Judge Curl (though leaving Pauffley J’s order intact) and which permitted the media, though not the general public, to attend the hearing due to take place on 3 November 2006. On 2 November 2006 I handed down in public the judgment which I had previously handed down in private on 1 November 2006 setting out my reasons for varying Judge Curl’s order and for allowing the media to be present: Re Brandon Webster, Norfolk County Council v Webster [2006] EWHC 2733 (Fam).

I should point out that when I gave judgment on 2 November 2006 I had not seen the papers either in the previous or in the current care proceedings (see Re Brandon Webster, Norfolk County Council v Webster [2006] EWHC 2733 (Fam) at para [3]), nor was I then aware that I was to conduct the hearing on 3 November 2006. In the event the matter was listed before me on 3 November 2006 and I have now read all the relevant papers.

NCC was represented by Ms Rachel Langdale. The parents were represented by Mr Richard Anelay QC and Ms Jane Hoyal. The children’s guardian was represented by Mr Jonathan Bennett. Although the hearing took place in chambers and the general public were not admitted, in accordance with the order I had made on 1 November 2006 the media were allowed to be present. Upwards of twenty journalists, representing both the print and the broadcast media, were in fact present throughout the hearing. Perhaps not surprisingly in the circumstances, both the judgment I handed down on 2 November 2006 and the hearing on 3 November 2006 were the subject of extensive reporting in both the print and the broadcast media.

Practice at a hearing such as that which took place before me on 3 November 2006 is regulated by the President’s Practice Direction (Family Proceedings: Court Bundles) (Universal Practice to be Applied in All Courts other than the Family Proceedings Court) [2006] 2 FLR 199. Paragraph 4.2 of the Practice Direction provides that the bundle lodged with the court for use at the hearing must contain certain documents including, so far as material for present purposes, an up to date summary of the background to the hearing, a statement of the issues to be determined and a position statement by each party, including a summary of the order or directions sought by that party. In compliance with that requirement, Ms Langdale filed a position statement on behalf of NCC which, conveniently and appropriately in the circumstances, contained all the relevant information in a single composite document. Mr Anelay did likewise on behalf of the parents. The position of the children’s guardian was very clearly set out in an interim report dated 1 November 2006 which obviated the need for Mr Bennett to file a position statement.

In the light of certain comments that have been made since the hearing I should make clear that not merely was NCC, as I have said, required by the Practice Direction to file a position statement. The position statement drafted by Ms Langdale on behalf of NCC was, in my view, a model of its kind. Appropriately, it summarised Judge Barham’s findings; it summarised the history of the current care proceedings and the outcome of the residential assessment; it summarised the various expert reports to which I have already referred; it summarised NCC’s interim care plan; and it explained why NCC was adopting the stance it is. Ms Langdale’s summary of all these matters was, as it seems to me, accurate, measured, dispassionate and objective.

As events developed, the hearing on 3 November 2006 embraced three distinct matters, namely consideration of:

NCC’s interim care plan is dated 23 October 2006. It sets out NCC’s overall aims as follows:

“The aim of the plan is for further assessment of Nicola and Mark Webster’s capacity to meet Brandon’s needs and to work in meaningful co-operation with agencies who are involved in Brandon’s life. It is proposed that when the family leave [the residential unit] on 6^th November 2006, Brandon and his parents will return to the family home in Cromer, Norfolk for a community based assessment to begin. As part of the assessment Norfolk Children’s Services and Health will provide support and advice to Mr and Mrs Webster, and monitoring of both Brandon and the family’s situation as a whole. This is to provide the assessment with the maximum opportunity of success and to ensure, as far as possible, Brandon’s safety and well-being.

The Local Authority has taken notice of Dr [N]’s opinion in the Psychiatric Report dated 25^th August 2006 that it is important for the social worker to build a collaborative relationship with the parents so that they are together able to develop a risk management plan to ensure Brandon’s safety. Of necessity the initial part of the plan will already be in place when Brandon returns home with his parents but reviews over the period of assessment will enable Mr and Mrs Webster to participate in further planning. A Family Group Conference as recommended by [the residential unit] will enable the extended family to be part of this process.

The Local Authority will continue to parallel plan for Brandon’s permanent care arrangements, to minimise delay for him in the event that he cannot be brought up by his parents in the long term. Both placement within his extended family and adoption are being considered as ‘backup’ plans for Brandon.”

The interim care plan proceeds to explain NCC’s reasoning:

“The Local Authority accept that to date Mr and Mrs Webster have met Brandon’s early day-to-day care needs to a level that is satisfactory or good. It is encouraging that neither parent appears to have any psychiatric or psychological condition which would prevent them from providing good enough parenting. It is also pleasing that Mrs Webster has begun to develop some insight into the issues surrounding Brandon, partly helped by … as detailed in the [residential unit] report.

The Local Authority does continue to have concerns about Mr and Mrs Webster’s continual denial of past events and the reason for these Proceedings. This is even more so in view of Dr [L]’ recent report into [B]’s injuries. Mr and Mrs Webster’s unwillingness to engage or co-operate with professionals when challenged, and the description of them manipulating and dividing, raises the Local Authority’s levels of concern regarding their capacity to meet all of Brandon’s needs to a good and safe enough level in the long term. Their lack of insight, particularly with Mr Webster and him seeming to enjoy the publicity surrounding this family, are also worrying.

However, the Local Authority takes note of Dr [N]’s opinion that ‘Risk Management needs to be approached in a pragmatic fashion through building good working alliances with the parents and avoiding polarisation of realities’. The discussion of [A]’s teeth at [the residential unit] demonstrates that such discussions do not contribute to positive outcomes for any of the participants.

Taking into consideration all the factors in this case, the Local Authority believes that the views of Dr [N] and Dr [M], coupled with the adequate day-to-day care Brandon has received to date, means that, on balance, the plan should be for Brandon to return to the community with his parents.”

For the purposes of considering the merits or otherwise of NCC’s interim care plan the most important documents, apart from the residential unit’s final report dated 16 October 2006 and the interim care plan itself, are Dr N’s two reports dated 25 August 2006, Dr M’s two reports dated 29 September 2006, the statement of NCC’s social worker, Ms O, dated 24 October 2006 and the report of the children’s guardian dated 1 November 2006.

NCC’s case is conveniently summarised in Ms Langdale’s position statement:

“The parents remain resolute in their assertions of “miscarriage of justice”. In the light of all the evidence (including that obtained by Mr and Mrs Webster) the local authority cannot accept these claims and must proceed in their care planning for Brandon upon the basis that there are risks to Brandon in the care of his parents as a consequence of what is known about the past. The medical evidence before the court to date remains at one with the court’s findings in 2004. The parents were represented by solicitors and counsel at that time, as indeed they have been during the currency of these proceedings.

Irrespective of the nature and extent of the evidence available to the court, the local authority confidently expects that given the background to this case the parents will remain in denial about the abuse inflicted on A and B. Indeed, it may be that the parent who did not cause the injury to B genuinely believes the denial in respect of that part of the case. The question is whether it is possible to work with denial in keeping Brandon safe.”

Ms Langdale indicates NCC’s view as being that within the community the parents will be able to build on the parenting advice they received at the residential unit. Having rehearsed the proposed care plan she continues:

“In order for Brandon to progress into the community with his parents, Mr and Mrs Webster need to work closely with health and children’s services to safeguard his needs. All at a time, unfortunately, when “both parents are preoccupied with the legal proceedings”. The circumstances that the parents currently face, however, are different from those in which they found themselves looking after three children. The parents have reduced financial problems, settled housing, and are more open about such problems with both the extended family and children’s services. They have developed and practised good parenting skills at the residential unit. They are united as a couple. There is only one baby to care for. As the psychiatrist says, the parents are determined to “prove themselves”.

Accordingly, the local authority invites the court to approve the interim care plan.”

The report of the children’s guardian is detailed, careful and thoughtful. Having carefully rehearsed and analysed the various expert reports she expresses the view that:

“all the above confirm that, despite all the acknowledged positives in the parents’ care of Brandon at [the residential unit], there remains a significant number of unanswered questions in terms of their capacity to safely care for him and appropriately meet his needs throughout his childhood. It is essential that such questions are considered and addressed in the next phase of this assessment.”

She then proceeds to identify various respects in which the detailed content of the care plan requires in her view to be clarified and elaborated. Subject to those points (each of which has in the event been accepted by both NCC and the parents), her recommendation is to:

“endorse the Interim Care Plan for Brandon to move into the community with his parents for the next stage of the assessment process, under the continuing structure of an Interim Care Order.”

All the parties before me invite me to endorse the interim care plan. I am content to do so. It seems to me, for all the reasons put forward by NCC and by the children’s guardian, that I should do so. I endorse the interim care plan and approve this important step in Brandon’s life. Brandon will continue to live with his parents while the process of assessment continues, but now at home rather than in the residential unit. The parents will continue to be closely monitored, receiving both announced and unannounced visits from social workers, from the health visitor and from other professionals, while the community–based assessment continues. There will be a package of support.

As I made clear when announcing my decision in court on 3 November 2006, Brandon’s long–term future will not be decided until the final hearing in June 2007. If the process in the meantime goes as everyone hopes and progresses positively, and if there are no problems, then it may be that it will be possible for Brandon to live at home permanently with his parents. I stress may be; whether that turns out to be the case is something to be decided by Holman J next June. In the meantime, NCC will continue to share parental responsibility for Brandon with the parents, under the interim care order that everyone agrees must remain in place.

By notice of application dated 27 October 2006 the parents sought:

Professor P is a distinguished paediatrician who specialises in child protection. Although he is based in California he has, I am told, given evidence (by video–link) in a care case heard in this country by Bodey J.

Mr Anelay makes no bones about why he is making the application. The parents have never accepted, and despite Dr L’s report they do not accept, that they caused B’s fractures. Their case is that there is likely to be (or at any rate a real possibility of) an alternative explanation to be found in genetic or other disorder; alternatively, that there is some other exonerating explanation. They wish to challenge in the present proceedings the medical evidence given in the previous proceedings. They assert that Professor P can bring to the proceedings something new and valuable. In the first place, he will bring a trans–Atlantic – a new and different – perspective to bear. He will not be beholden to what Mr Anelay called ‘the traditional English medical approach’. Secondly, he will be able to give a paediatric overview extending beyond Dr L’s narrow expertise as a paediatric radiologist. In short, says Mr Anelay, Professor P’s evidence is likely to be of great assistance.

Mr Anelay points out that NCC relies upon the findings in the earlier proceedings to establish threshold. Moreover, and in any event, he says, it is important to lay the issue to rest – something, he says, which must be in the interests of all the children and the parents. Crucially, he says, it is in Brandon’s interests that the medical evidence is tested and any doubts resolved. The instruction of Professor P is, in the view of the parents, central to that endeavour.

NCC points out, as I have said, that this was never a ‘single issue’ case. The fact is that Judge Barham made other threshold findings – in relation to both A and B – in addition to his findings in relation to B’s fractures. Mr Anelay cannot gainsay that. But whilst not formally accepting that those other findings would of themselves have sufficed to establish threshold, or that they would, even if sufficient to establish threshold, have justified the making of care orders, Mr Anelay submits that, absent the injuries to B, the outcome of the earlier care proceedings would, or might very well, have been very different. Absent the injuries to B, the children would not, he submits, have been removed permanently from their family. Even if care orders were appropriate, there would not, he suggests, have been, as in the event there were, both freeing orders and adoption orders. I record Mr Anelay’s submission without comment, for it may yet be something on which this court will have to rule.

I am, however, persuaded that I should permit the parents to instruct Professor P. I emphasise that this is not because I am persuaded that the parents have yet established a prima facie case justifying the re–opening of the previous findings. They have not. After all, their chosen expert, Dr L, produced a report that provided absolutely no support for their case. No, it is because it seems to me, in the particular and unusual circumstances of this case, that it is important, as Mr Anelay puts it, to lay this matter to rest once and for all. It is, in my judgment, in Brandon’s interest, as well as in his parents’ interest, as indeed also in the public interest, that the parents’ allegations – their allegations that they have been the victims of a miscarriage of justice, and are at risk of suffering a further miscarriage of justice if Brandon’s fate falls to be determined by reference to the earlier findings – should be properly explored, and then put to rest one way or the other.

Professor P has now confirmed that he is willing to be instructed and that he will be able to produce a report at the latest by 5 January 2007. I will make the appropriate order.

As I have said, the parents have not at this stage pursued their application for permission to instruct a geneticist, nor have they yet made any application for permission to re–open the findings made by Judge Barham in the previous proceedings. I can understand their view that it would be premature for them to take either step before receiving at least Professor P’s preliminary findings. But these matters cannot be left hanging indefinitely in the air. I am accordingly going to direct that if their application for permission to instruct a geneticist is indeed to be pursued, then the application must be made as soon as possible following receipt of Professor P’s preliminary views and in any event by no later than 19 January 2007. Similarly, if the parents are indeed to make an application for permission to re–open Judge Barham’s findings, that application must be made by no later than 19 January 2007. Moreover, it must identify, specifically and precisely, and by reference to the appropriate paragraphs of Judge Barham’s two judgments, which of his findings the parents seek to re–open.

Strict compliance with these directions – which I emphasise is absolutely vital – will enable the question of whether Judge Barham’s findings are to be re–opened to be determined at the pre–hearing review on 22 February 2007. This will ensure that there is adequate time to prepare properly for the final hearing due to begin on 25 June 2007.

Depending upon what Professor P says in his report, the children’s guardian may herself wish to obtain further expert evidence. Any such report must be filed by no later than 30 March 2007.

At the end of the hearing on 3 November 2006 I accordingly made a directions order which was finalised on 15 November 2006. It embodies these and the other directions that seem to me appropriate to ensure that the pre–hearing review on 22 February 2007 is effective and that everything will be ready for the final hearing in June 2007. The order is set out at the end of the judgment.

At the end of the hearing on 3 November 2006 I extended the order I had made on 1 November 2006 until after judgment following the final hearing in June 2007. Consistently with paragraph 1 of my previous order, I gave the media (but not the public) permission to attend the hearings on 22 February 2007 and 25 June 2007, along with any other hearings there might be in the meantime. Those necessary adjustments apart, the order I made on 3 November 2006 was, with only very slight amendments to paragraphs 6(b) and 6(c) (corresponding to paragraphs 8(b) and 8(c) of the order of 1 November 2006), in the same terms as the order I had previously made on 1 November 2006. The relevant parts of the order are also set out at the end of this judgment.

It will be seen that paragraph 1(a) of my order permits the disclosure to the public of Ms Langdale’s position statement. That order was required, if her position statement was to be made available to the media and to the public, because it was clearly a document to which the provisions of section 12 of the Administration of Justice Act 1960 applied and because although it had been extensively referred to during the course of the hearing it had not been read out in full: see Re Brandon Webster, Norfolk County Council v Webster [2006] EWHC 2733 (Fam) at para [121]. It was appropriate for me to make the order because it was essential for me to do so if the media, and through the media the general public, were to understand what had gone on during the hearing on 3 November 2006, and, in particular, to understand the basis upon which NCC was putting forward the interim care plan which in the event I endorsed.

Today in the Family Division, as in the other Divisions of the High Court and in the Court of Appeal, we have a system under which many matters that would in the days of purely oral advocacy have been spoken in court by counsel are now set out in written documents, prepared by counsel, which are pre-read by the judge before the hearing and which are therefore not read out in court during the hearing. In other words, we have a system today under which the necessary advocacy is in part written advocacy though still in major part oral advocacy in the traditional manner. This system is intended to further the proper administration of justice. It does so in various ways including, in particular, by shortening hearings (and thereby increasing the throughput of cases through the court system), though at the cost of imposing on the judges the burden of pre-reading – usually, at least in this Division, in the judge’s own time – on a scale that would have astonished our judicial predecessors even in the quite recent past.

But it is vital that this wholesome move in the direction of an enhanced degree of written advocacy, so very desirable in the public interest from so many points of view, should not be allowed to damage the vital public interest in open justice. If the media are to be permitted to attend a hearing such as that which took place on 3 November 2006 – and for the reasons I gave in Re Brandon Webster, Norfolk County Council v Webster [2006] EWHC 2733 (Fam) it was very much in the public interest that they should be – then the very same public interest requires, in my judgment, that the media should be allowed to see documents such as Ms Langdale’s position statement. For if the media, and indeed the public generally, are not permitted to see Ms Langdale’s position statement the ability of the media, and through the media the ability of the public, to understand what took place during the hearing would be severely compromised – an outcome that would defeat the very purpose of permitting the media to be present.

Lest anyone have cause to wonder why only Ms Langdale’s position statement has been disclosed, I should make it clear that it was the only document which anyone – the media included – suggested should be disclosed. There was no application, for instance, for the disclosure of the parents’ position statement prepared by Mr Anelay.

Towards the end of the hearing, Mr Anelay put before me the draft of a press statement or press release which the parents were proposing to issue. I declined as a matter of principle to express any views at all about that document. Because the matter, in my judgment, is one of no little importance, I should take a moment to explain why I adopted that course.

In the first place, if and insofar as I was being asked to express any view as to whether what was proposed to be said would be in compliance either with the general law or with the reporting restriction order that I had made – and, to be fair, Mr Anelay did not put his application at least explicitly on this basis – it would have offended against the very important principle that judges do not give advice. The giving of advice is the responsibility of the litigant’s legal advisers; it is no part of the function of a judge. Judges do not give advisory opinions.

But there is, as it seems to me, a wider and even more important point of principle involved here. It is the point that I considered in Re Roddy (A Child) (Identification: Restriction on Publication) [2003] EWHC 2927 (Fam), [2004] 2 FLR 949 at paras [88]-[89] and to which I later returned in Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, at paras [145]-[147].

I repeat what I said in Re Roddy (A Child) (Identification: Restriction on Publication) [2003] EWHC 2927 (Fam), [2004] 2 FLR 949 at para [89]:

“A judge can assess what is lawful or unlawful, a judge in the Family Division may be called on to assess whether some publication is sufficiently harmful to a child as to warrant preventing it. But judges are not arbiters of taste or decency. As Neill LJ said in Re W (A Minor) (Wardship: Restrictions on Publication) [1992] 1 WLR 100, [1992] 1 FLR 99, at 104 and 103 respectively:

‘The court has seen a copy of the article to be published by the newspaper. It is not for me to comment on the style of the article … But I have no doubt whatever that the newspaper should be free to publish this story and to publish it in a manner which will engage the interest of their readers.’

It is not the function of the judges to legitimise ‘responsible’ reporting whilst censoring what some are pleased to call ‘irresponsible’ reporting. The days are past when the business of the judges was the enforcement of morals. A judge, although it may be that on occasions he can legitimately exercise the functions of an aedile, is no censor. And as the Strasbourg jurisprudence establishes (see Harris v Harris; Attorney-General v Harris [2001] 2 FLR 895, at [373]), the freedom of expression secured by Article 10 is applicable not only to information or ideas that are favourably received, or regarded as inoffensive, but also to those that offend, shock or disturb the state or any section of the community. Article 10 protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed. It is not for the court to substitute its own views for those of the press as to what technique of reporting should be adopted by journalists. Article 10 entitles journalists to adopt a particular form of presentation intended to ensure a particularly telling effect on the average reader. As Neill LJ recognised, a tabloid newspaper is entitled to tell the story in a manner which will engage the interest of its readers and the general public. If there is no basis for injuncting a story expressed in the temperate or scholarly language of a legal periodical or the broadsheet press there can be no basis for injuncting the same story simply because it is expressed in the more robust, colourful or intemperate language of the tabloid press.”

What goes for the media, seeking to exercise their right under Article 10 to “impart information and ideas” to the general public, must also, in my judgment, go for the parents, as they seek to exercise their right under Article 10 to “impart information and ideas” to the media and, via the media, to the world at large. It is not for a judge to approve or disapprove – to licence or to refuse to licence – what the parents wish to say. And that in truth is what I was being asked to do. I absolutely decline to embark upon the exercise. It would be wholly wrong of me to do so.

As I commented in Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, at para [146]:

“Licensing in advance what may be published or broadcast is simply censorship under a different name.”

And as I commented in Re Roddy (A Child) (Identification: Restriction on Publication) [2003] EWHC 2927 (Fam), [2004] 2 FLR 949, in the course of the passage I set out above:

“A judge, although it may be that on occasions he can legitimately exercise the functions of an aedile, is no censor.”

I claim no originality for that important insight, which I gratefully borrow from the late Professor Herbert Hart (see Law, Liberty and Morality, Oxford University Press 1963, page 44). But it is, as it seems to me, of profound importance.

Licensing of the press, after all, was abolished in this country as long ago as 1694, when Parliament finally refused to extend, yet again, the statute of 1662 (14 Charles II c 33) “for preventing the frequent abuses in printing seditious, treasonable and unlicensed books and pamphlets, and for regulating of printing and printing presses.” It should not be allowed to creep in through the back door, least of all through the door of a judge’s chambers. The words of Lord Mansfield in R v The Dean of St Asaph (1784) 3 Term Rep 428n ring as true today as they did over 220 years ago:

“The liberty of the press consists in printing without any previous licence, subject to the consequence of law.”

I should not want there to be any misunderstanding. There will be occasions when it is appropriate for a judge to issue or approve the issue of a press statement or press release. Sometimes it will be appropriate to do so if the court is seeking to enlist the assistance of the media in finding a missing child. I did so myself in Kelly v British Broadcasting Corp [2001] Fam 59, [2001] 1 FLR 197. Sometimes it will be appropriate to do so by way of supplement to a long and complicated judgment where the judge is anxious that his reasons should be conveyed not merely to the parties and to professional readers who will need to read the whole judgment but also in terms more easily and more quickly understood by the media and by the world at large.

I have in mind here what Wall LJ said in Re H (Freeing Orders: Publicity) [2005] EWCA Civ 1325, [2006] 1 FLR 815, at paras [30]-[32]:

“[30] I began this judgment by stating that the case provides a strong argument for those who, like myself, take the view that the judgments of circuit and Family Division judges hearing care and adoption proceedings should as a matter of routine be given in an anonymised form in open court. In my judgment, it also provides a strong argument for judges in cases which are controversial, or which have attracted media attention, preparing a short written summary of their conclusions and their reasons which can be made publicly available when the judgment is delivered.

[31] Cases involving children are currently heard in private in order to protect the anonymity of the children concerned. However, the exclusion of the public from family courts, and the lack of knowledge about what happens in them, easily lead to the accusation of ‘secret justice’. Moreover, judges communicate in carefully reasoned judgments, not soundbites. Thus, even when a judgment is published it is likely to be read in its entirety only by lawyers.

[32] In my judgment, therefore, if judges wish to avoid misunderstandings about judgments in controversial cases, they should consider preparing short summaries of their reasons which can either be read out or distributed in court when the full judgment is given or handed down. This is not designed either to devalue the judgment or in any way to be a substitute for it. It needs, however, to be borne in mind that a journalist who gets a substantial judgment at 10.30 in the morning and has to write a piece about it against a short deadline cannot be expected to absorb and reproduce every nuance in it in such a short period of time.”

With respect, I entirely agree with that approach, though I would add that the same objective can sometimes be achieved by including in the body of the judgment (as, for example, I did in R (Smeaton) v Secretary of State for Health (Schering Health Care Ltd and Family Planning Association as interested parties) [2002] EWHC 610 (Admin), [2002] 2 FLR 146, at paras [3]-[19]) an overview which summarises the issues and the decision in plain and straightforward language and which avoids as much as possible all technical language.

Sometimes it will be appropriate for a judge to issue or approve the issue of a press statement or press release which, in lieu of a judgment, and perhaps because at that point there is no judgment which can be released, sets out in a neutral and bi-partisan manner what has occurred during a hearing in private. In such a case, of course, judicial authority for what is proposed is required in order to meet the requirements of section 12 of the Administration of Justice Act 1960.

But here, what was being suggested was something entirely different: that I should ‘vet’ a press statement or press release being issued by one party following, and no doubt commenting upon, a hearing which had taken place in the presence of the media. That, as I have said, is, in my judgment, no proper part of a judge’s functions.

In my previous judgment I had expressed the view (see Re Brandon Webster, Norfolk County Council v Webster [2006] EWHC 2733 (Fam) at para [110]) that:

“there are … overwhelmingly strong reasons for authorising the disclosure – perhaps subject to some degree of necessary anonymisation – of Judge Barham’s two judgments.”

Having now read the two judgments I remain of that view. Publication of Judge Barham’s two judgments is necessary, not least for the reasons so powerfully articulated by Wall LJ in Re H (Freeing Orders: Publicity) [2005] EWCA Civ 1325, [2006] 1 FLR 815, at para [26], sentiments with which I would respectfully wish to associate myself.

Judge Barham’s two judgments, if I may be permitted to say so, are models of lucid clarity. Anyone who takes the trouble to read his judgments will be able to understand without difficulty the evidence Judge Barham read and heard, will be able to understand what findings he made, and why, and will be able to understand why Judge Barham concluded, as he did, that A, B and C had to be removed from the parents and placed for adoption.

I propose, therefore, to authorise the release of Judge Barham’s two judgments into the public domain, but with a few – a very few – alterations. These are designed to protect the identities of the children A, B and C and of a foster carer. They are also designed to protect, at least for the time being (see Re Brandon Webster, Norfolk County Council v Webster [2006] EWHC 2733 (Fam) at paras [117]-[119]) the identities of the various expert witnesses who were referred to by name in the judgments. In deciding how exactly Judge Barham’s judgments should be edited I have considered the views not merely of NCC and the parents but also of the adoptive parents (to whom I have, for this purpose, authorised the disclosure of the full texts of the two judgments in the form in which they were originally delivered).

In the light of their representations I have concluded that Judge Barham’s two judgments should be released into the public domain with the following (but, I emphasise, only the following) alterations to the original texts:

I am handing down the anonymised versions of Judge Barham’s two judgments in open court at the same time as I hand down this judgment.

Mr Mark Warby QC, who was present holding a watching brief on behalf of various media interests, submitted at the end of the hearing that, whatever might be the position in relation to the other experts (see paragraph [59] above), there is no reason why Professor P should not be identified. He suggested that the public interest arguments that may support a contention that domestic experts should not be identified (see, for example, Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, at paras [87]-[90], [127]-[131]) do not apply in the case of a foreign expert such as Professor P. That may be, but if Mr Warby’s submission is correct it would have the consequence – which some might see as unfortunate – that a foreign expert will not have, or perhaps, more precisely, will not be perceived as having, the same protection as a domestic expert.

Be that as it may, I am not, at this stage, prepared to exclude Professor P from the ambit of the order which at present prevents identification of any of the experts. Professor P has been asked for his views on the point and has indicated, perhaps not surprisingly, that he would prefer to be treated in the same way as all the other experts.

As in the case of the other experts, and very much for the same reasons (see Re Brandon Webster, Norfolk County Council v Webster [2006] EWHC 2733 (Fam) at paras [118]-[119]), this is not an issue I can resolve today – after all, Professor P may wish to be heard on the question, just as Dr X and Dr Y were heard (and, indeed, represented by counsel) in Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142. If the media wish to be in a position to identify Professor P, or indeed, any of the other experts, then an appropriate application can no doubt be made.

Media reports following the hearing on 3 November 2006 referred to the parents “anger” at a statement released by NCC after the hearing and to their solicitor as being “appalled but not surprised” by what she is said to have described as the “selective nature” of the statement. I do not know whether the parents and their solicitor have been accurately reported, nor do I know what statement was being referred to. I would, however, venture to make two observations.

In the first place, if and insofar as these complaints relate to the use NCC has made of Ms Langdale’s position statement, I would merely repeat what I have already said. Ms Langdale’s position statement was, as it seems to me, accurate, measured, dispassionate and objective. I had moreover, and in what I conceived to be the public interest, authorised its release into the public domain.

The second observation relates to a more general point, and one of some importance.

My purpose in making the disclosure orders was not merely to enable the parents to put their own version of events into circulation, important though that undoubtedly was. As I said in my earlier judgment (see Re Brandon Webster, Norfolk County Council v Webster [2006] EWHC 2733 (Fam) at para [87]), in a case such as this:

“it is more than usually important that the truth – the full truth – should out. If, as the parents allege, they have lost three children and stand at risk of losing a fourth due to deficiencies in the system, then there is a pressing need for the true facts to be exposed. If, on the other hand, the parents are wrong, and the system has performed conscientiously, competently and correctly, then it is equally highly desirable that this should be known and publicised.”

And as I went on to say (at para [104]):

“Rightly or wrongly, correctly or otherwise – and for present purposes it matters not which – the media have suggested that the parents and their children A, B and C have been, and that the parents and Brandon are at risk of being, the victims of a miscarriage of justice. In these circumstances there is a pressing need for public confidence to be restored – either by the public and convincing demonstration that there has not been a miscarriage of justice or, as the case may be, by public acknowledgement that there has been.”

But none of this means that the parents are entitled to set the media agenda. As I said in Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, at para [134], and I repeated the point in Re Brandon Webster, Norfolk County Council v Webster [2006] EWHC 2733 (Fam) at para [106], parents in this situation may have to be prepared to take the rough with the smooth. If they want to put some parts of the case into the public domain, then they may have to accept that other – to them less appealing – parts of the case are also put into the public domain.

And in this connection I repeat what I said in Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, at para [142]. I do not know whether the parents’ complaints have any foundation. It may be that they are indeed the victims of a miscarriage of justice. If they are, then they have a powerful argument for saying that they should not be gagged. But it may be, for all I know, that the parents are not the victims of any miscarriage of justice and that they are indeed everything that Judge Barham found them to be. In that event there may be a powerful public interest in exposing them for what they are found to be: parents who falsely cast themselves in the role of victim and sought, by use of the media, to persuade the public that they were something which in truth they turn out not to have been.

The reporting restriction order which I made on 3 November 2006 was in the following terms:

“EXPLANATION

A.

On 3 November 2006 the Court heard applications for directions in the proceedings which are pending in relation to the Third Respondent, Brandon Webster (“the Care Proceedings”) and applications by the Fourth and Fifth Respondents.

B.

Pursuant to the Order made by the Hon Mr Justice Munby on 1 November 2006 those applications were heard in the presence of representatives of the Fourth and Fifth Respondents and of other newspapers broadcasters and news agencies.

C.

The following parties were represented before the court: the Fourth and Fifth Respondents, by Mark Warby QC; the First and Second Respondents, by Richard Aneley QC and Miss Jane Hoyal of Counsel; the Third Respondent, by Jonathan Bennett of Counsel; the Applicant, by Miss Rachel Langdale of Counsel; and Mr & Mrs D (the adoptive parents of Children A and B) by Miss Susan Reed of Counsel. The Sixth Respondent did not appear and was not represented.

D.

Further applications to the court in the Care Proceedings (“the Future Care Applications”) are due to be heard on 22 February 2007 and 25 June 2007 and (it may be) on other dates.

E.

Details of the children referred to in the Order are given in Schedule 1 to this Order.

F.

The court directed that the attached Explanatory Note be made available to any person served with this Order.

ORDER

Leave to disclose

1.

Leave is granted for the disclosure to the public of

(a)

the Position Statement filed on behalf of the Applicant for the hearing on 3 November 2006;

(b)

the Order for Directions made by the Court following the hearing on 3 November 2006.

Permission to attend and report the Future Care Applications

2.

Representatives of the Fourth and Fifth Respondents and of other newspapers broadcasters or news agencies (collectively “The Media”) may attend and report the hearing of the Future Care Applications subject only to

(a)

the restrictions set out or referred to in paragraphs 3 to 9 below;

(b)

any directions any judge hearing the Future Care Applications may make requiring such representatives to absent themselves during any particular part or parts of the hearing.

Reporting and other Restrictions continuing

Children A, B and C

3.

The following reporting restrictions in relation to Children A, B and C continue:

(a)

The Reporting Restriction Order made by the Hon Mrs Justice Pauffley on 17 May 2006 in relation to Children A, B and C (‘the First Reporting Restriction Order’), which is unaffected by this Order and shall continue to apply to the persons and for the period provided for in that order.

(b)

Section 97(2) of the Children Act 1989, which is not dispensed with in relation to Child A, B or C.

The Third Respondent, Brandon Webster

Duration

4.

Subject to any different order made in the meantime the restrictions in paragraphs 6, 7 and 8 below shall have effect until after final judgment in the Care Proceedings.

Who is bound

5.

The restrictions in paragraphs 6, 7 and 8 below bind all persons and all companies (whether acting by their directors, employees or agents or in any other way) who know that the order has been made.

Publishing restrictions

6.

This paragraph prohibits the publication or broadcast in any newspaper, magazine, public computer network, internet website, sound or television broadcast or cable or satellite programme service of any of the following in connection with the Care Proceedings:

(a)

the name and address of any individual having day-to-day care of or medical responsibility for the Third Respondent whose details are set out in Schedule 3 to this Order (‘a carer’);

(b)

the name, address or whereabouts of any residential assessment unit, residential home or other establishment (other than the family home) at which the First and/or Second Respondent or the Third Respondent have been or are resident at the time of publication (‘an establishment’);

(c)

the name and address of any social worker or children and family care assistant involved in the Care Proceedings, the Children’s Guardian of the Third Respondent, and any person (other than the First and Second Respondents) who is a witness or prospective witness in the Care Proceedings.

7.

No material the publication of which would offend against the restrictions set out or referred to at 3 and 6 above shall be included in

(a)

any publication of the text or a summary of this order (except for service of the order under paragraphs 11 and 12 below);

(b)

any report permitted under paragraph 2 above.

8.

Save in respect of

(a)

such parts of the hearing on 3 November 2006 as took place in the presence of The Media;

(b)

such part or parts of the hearing of the Future Care Applications as The Media are permitted to attend and report in accordance with paragraph 2 above;

(c)

the documents referred to in paragraph 1 above; and

(d)

such other documents referred to during such parts or parts of the said hearings as the court may later permit to be made public;

the restrictions in respect of the Care Proceedings arising by virtue of section 12 of the Administration of Justice Act 1960 are unaffected and continue to apply as if this order had not been made.

Restrictions on seeking information

9.

This paragraph prohibits any person from seeking any information relating to the Third Respondent from

(a)

a carer or

(b)

a resident (other than the First or Second Respondents) or member of staff of an establishment.

What is not restricted by this Order

10.

Nothing in his order shall prevent any person from

(a)

Seeking or publishing information which is not the subject of the restrictions set out or referred to in paragraphs 3 to 9 above;

(b)

Inquiring whether a person or place falls within the scope of paragraphs 6 or 9 above or the First Reporting Restriction Order;

(c)

Seeking or publishing information relating to Children A, B, C or the Third Respondent while acting in a manner authorised by statute or by any court in England and Wales;

(d)

Seeking information from the responsible solicitor acting for any of the parties or any appointed press officer, whose details are set out in Schedule 2 to this Order;

(e)

Publishing information which before the service on that person of this order was already in the public domain in England and Wales as a result of publication in any newspaper, magazine, sound or television broadcast or cable or satellite programme service, or on the internet website of a media organisation operating within England and Wales.”

The directions order which I made on 3 November 2006 and finalised on 15 November 2006 was in the following terms:

“AND UPON Mr Justice Munby, sitting at the Royal Courts of Justice, the Strand, in chambers, in the presence of the media, approving the interim care plan to permit Brandon to be placed into the community with his parents, assessment and monitoring ongoing;

IT IS ORDERED:

1

Written confirmation having been received from Professor P that he is willing to be instructed in this matter and is able to report by 5^th January 2007, leave to the 1^st and 2^nd respondents to instruct Professor P for the purpose of conducting a paediatric overview in respect of the medical evidence in the previous proceedings. This is deemed a proper disbursement on the 1^st and 2^nd respondents’ public funding certificate and is to be funded solely by the 1^st and 2^nd respondents’ certificate.

2

An agreed paginated bundle of medical evidence (including records and reports from the previous proceedings and His Honour Judge Barham’s judgments) is to be prepared and served on the Applicant and the children’s guardian by the solicitors for the 1^st and 2^nd Respondents by 4 pm on 13^th November 2006. A letter of instruction to Professor P and accompanying documentation (including images and films) is to be sent to Professor P by the solicitors for the 1^st and 2^nd respondents by 17^th November 2006.

3

Permission is given to the solicitor for the children’s guardian to instruct a paediatrician to prepare a report in response to Professor P if so advised. Leave to disclose the medical records, reports and judgments in the previous proceedings for such purposes. This is deemed a proper disbursement on the child’s public funding certificate and is to be funded solely by the child’s certificate. Any such report obtained is to be filed by 30^th March 2007.

4

If the 1^st and 2^nd respondents propose to pursue their application for permission to instruct a geneticist, that application shall be made as soon as possible following receipt of Professor P’s preliminary views, and in any event shall be made by 19^th January 2007, and shall be dealt with (if not before) at the pre-hearing review on 22^nd February 2007.

5

If the 1^st and 2^nd respondents propose to apply for permission to re-open any findings made by Judge Barham in 2004:

(a)

that application shall be made by 19^th January 2007;

(b)

the application shall identify, specifically and precisely, and by reference to the appropriate paragraphs of Judge Barham’s judgments, which of his findings the 1^st and 2^nd respondents seek to re-open; and

(c)

the application shall be dealt with at the pre-hearing review on 22^nd February 2007.

6

The Applicant is to file and serve a statement updating the court in respect of the interim care plan by 13^th February 2007.

7

The 1^st and 2^nd respondents are to file statements for the hearing on 22^nd February 2007 by 19^th February 2007.

8

The pre-hearing review on 22^nd February 2007 listed before Mr Justice Holman is confirmed. The 1 hour time estimate given for that hearing is revised to ½ day.

9

The hearing of any further applications in relation to the care proceedings is reserved to Mr Justice Munby or Mr Justice Holman, if available, until 21^st December 2006; thereafter to Mr Justice Holman, if available.

10

Leave to the Applicant to disclose Judge Barham’s judgments in the previous proceedings to the adoptive parents of A, B and C.”