X Council v B & Ors

On 16 August 2004, at the end of care proceedings brought by a local authority in respect of the B children, I handed down a written judgment which I entitled In the Matter of the B children, X Council v B and others [2004] EWHC 2015 (Fam). The judgment bore the following rubric on the front sheet:

“This judgment was handed down in private but the judge hereby gives leave for it to be reported in the form in which it here appears.

The judgment is being distributed on the strict understanding that in any report no person other than the advocates (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.”

The judgment was subsequently reported as X Council v B (Emergency Protection Orders) [2004] EWHC 2015 (Fam), [2005] 1 FLR 341. Hitherto, so far as I am aware, neither the family nor the local authority has been publicly identified.

On 6 March 2007 the children’s mother, who I will refer to as Mrs B, wrote to me. Her letter, which began with the words “I’m writing to you to ask for your advice,” expressed strong criticisms of the local authority. I do not propose to set out those parts of the letter and I make it clear that I express no views whatever as to whether or not her criticisms are justified.

For present purposes the relevant part of the letter reads as follows. Having referred to my judgment Mrs B continued:

“I know that the judgement is being used in other cases and that it is helping other families in many ways … but Justice Munby where does it help us … We cannot name and shame our local authority which is what we would want to do more than anything. Could you please explain to us what we can do with this damning judgement you handed down, because it seems of little use to us. Could you please explain to us why our local authority are protected from publicity …”

Plainly I cannot give Mrs B any advice. I have not done so and I do not propose to do so.

On 4 April 2007 my clerk, on my instructions, wrote the following letter to the local authority:

“You may recall this care case in which, on 16 August 2004, Mr Justice Munby handed down a judgment which was subsequently reported as X Council v B (Emergency Protection Orders) [2004] EWHC 2015 (Fam), [2005] 1 FLR 341.

The children’s mother, Mrs [B], has recently written to the judge (copy letter enclosed). The judge interprets Mrs [B]’s letter as an albeit informal request that the judgment and the local authority’s name should no longer be anonymised.

Plainly the judge cannot give Mrs [B] advice, but it would be assist if, before he responds to her letter, you were able to indicate what the local authority’s reaction is to her request. In this context he suggests that you may wish to consider Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, paras [125]-[126], Re X, Barnet LBC v Y and X [2006] 2 FLR 998, paras [173]-[174], and British Broadcasting Company v Rochdale Metropolitan Borough Council and X and Y [2005] EWHC 2862 (Fam), [2007] 1 FLR 101.

I look forward to hearing from you in due course. I am sending a copy of this letter to Mrs [B].”

The local authority acknowledged this letter on 12 April 2007, following this up on 18 April 2007 with an e-mail which indicated that it was proposing to take advice on the issue from junior counsel, Ms Alison Woodward, who, with Mr Ernest Ryder QC as he then was, had acted for the local authority in the care proceedings.

On 9 May 2007 the local authority responded and at some length. I am grateful and I trust that Mrs B is also, for the trouble the local authority has taken.

In the circumstances I should set out the local authority’s letter substantially in full, omitting only those parts which refer to what may be factually controversial matters:

“As the Head of Legal and Democratic Services for Blackpool Council I have been asked to respond your recent correspondence in respect of this matter.

Firstly, I would wish to make clear that the local authority accepted the analysis of His Lordship in relation to practice and procedure in relation to the making of Emergency Protection Orders and derived considerable benefit from the very useful guidance given by him in his judgement. Following the judgement the local authority has highlighted the issue to staff and continues to ensure that Emergency Protection Orders are only sought in appropriate circumstances. However, the local authority maintains the view that it did not act inappropriately in seeking an Emergency Protection Order in the case in point.

Secondly, I would wish to confirm this local authority’s general commitment to transparency and openness in proceedings. Of note in this particular case the names of the solicitors are contained in the judgement. As they are all based in the Fylde Coast and Blackpool is the only Borough Council in that area that deals with Children Act proceedings anyone so wishing could discern the identity of the local authority and it is accepted therefore that we could not resist the lifting of the anonymity of the local authority on this basis alone.

Whether or not the anonymity of the local authority is lifted in this case is entirely a matter for His Lordship, however I would wish to make the following observations:

1.

The local authority was granted anonymity due to the unusual circumstances of the case. The court will recall that this was a case where the local authority took the most exceptional step of asking the court not to make any findings in respect of the Threshold Criteria as it believed this course of action to be in the best interests of the children. The court therefore heard no evidence and there was no factual determination of any of the matters leading to the proceedings. The full details of the case are accordingly not reported in the judgement.

2.

The letter from Mrs [B] discloses an inaccurate, or at least incomplete, recollection of events … The local authority is accordingly concerned that if anonymity is lifted the family may misrepresent the facts of the case.

3.

It is not clear why Mrs [B] is seeking to have the anonymity of the local authority lifted at this time. It is approaching 3 years since the Judgement was made. The purpose of the request is given only as to obtain justice, publicise the local authority as abusers and to name and shame the local authority. The local authority is concerned how Mr and Mrs [B] may use the judgement if anonymity is lifted … I am concerned that it may be the intention of Mr and Mrs [B] to castigate particular individuals involved in the case who may be personally placed at risk by this and who have no opportunity to put forward the local authority’s position in respect of the case.

4.

It would appear from her letter that Mrs [B] would not intend to keep the identity of the children confidential, and whilst the local authority do not share Parental Responsibility with the parents, it appears to the local authority that the children of the family could be adversely affected by publicity in respect of this matter. I do not know if His Lordship has sought the views of the other parties in the case but details can be provided if they would be of assistance.

I hope that this will assist His Lordship in his determination, however should he require any further information please do not hesitate to contact me at the above address. The local authority will accept whatever Order is made and awaits to hear further in this regard.”

In the light of what the local authority says I am prepared to rule on the matter without requiring Mrs B to make any formal application.

The matter and, as I read her letter, the only matter raised by Mrs B is the question of whether the local authority’s name should continue to be anonymised. That is the matter on which I now rule. I make no ruling and express no views whatever on any other matter.

The local authority’s letter refers to the local authority having been “granted anonymity.” So far as I can recall, and I have examined the court file to confirm my recollection, I was not asked to grant and I did not grant any injunction. The only anonymity which was granted was that deriving from the rubric on the front sheet of my judgment which I have set out in paragraph [1] above. And I have to say that my recollection (which may be wrong) is that this wording was used not as a result of any specific request made by any of the parties but simply because it was the wording conventionally attached at that time to Family Division judgments authorised to be released for publication or report. Bearing in mind that judgment in this case was handed down only a few months after I had handed down judgment in Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2FLR 142 (see below), I cannot help thinking that if the matter had been raised before me I would have made (which I did not) some reference to the earlier case.

Lurking behind the current application there is, in fact, an important issue as to the precise effect of the rubric where, as here, there is no injunction in place. I do not propose to consider that issue. I will proceed on the assumption, though I emphasise without deciding the point, that the rubric is binding on anyone who seeks to make use of a judgment to which it is attached.

I had to consider the question of a local authority’s anonymity in the context of care proceedings in Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2FLR 142. At para [125] I said this:

“I do not agree with Mr Howard, however, that the identity of the local authority needs to be protected. He says that there is no public interest in naming the local authority. That may or may not be so, but it is, I think, largely beside the point. It is for the local authority to establish a convincing case for an injunction to restrain the media publishing something which is prohibited neither by the general law nor by s 12 [of the Administration of Justice Act 1960]. It cannot establish such a case merely by demonstrating – even assuming it can – that there is no public interest in the identity of the local authority, for that is to put the boot on the wrong foot. His real case is that the local authority’s identity needs to be protected in order to ensure that B’s identity is protected. That argument, if it could be justified on the facts, might well weigh heavily in the balance. But, in my judgment, Mr Howard fails to make good the factual premise. I do not accept his argument that identification of the local authority is likely to lead to the identification of either B or her carers. I do not accept his argument that a combination of the disclosure sought and “tittle-tattle” will serve to identify B.”

I subsequently adopted the same approach in Re X, Barnet LBC v Y and X [2006] 2 FLR 998 at para [173].

There will, of course, be cases where a local authority is not identified, even where it has been the subject of stringent judicial criticism. A recent example is Re X (Emergency Protection Orders) [2006] EWHC 510 (Fam), [2006] 2 FLR 701. But current practice shows that local authorities involved in care cases are increasingly being identified. In addition to the two cases I have already referred to, other recent examples can be found in British Broadcasting Company v Rochdale Metropolitan Borough Council and X and Y [2005] EWHC 2862 (Fam), [2007] 1 FLR 101, Re Webster, Norfolk County Council v Webster and others [2006] EWHC 2733 (Fam), [2007] 1 FLR 1146, Oldham MBC v GW, PW and KPW (A Child) [2007] EWHC 136 (Fam) and Re Ward, British Broadcasting Corporation v Cafcass Legal and others [2007] EWHC 616 (Fam). No doubt there are others.

I propose to adopt the same approach here as that which I set out in Re B. Is there some proper basis for continuing the local authority’s anonymity? In my judgment there is not.

In the first place, as the local authority very frankly accepts, whatever anonymity it enjoys is somewhat precarious, given the fact that the solicitors in the case have all been publicly identified. More importantly, however, I cannot see that there is any need to preserve the local authority’s anonymity in order to protect the children’s privacy and identities. Disclosure of the name of the local authority is not of itself going to lead to the identification of the children. In this respect the case is no different from Re B and Re X.

The real reason why the local authority seeks to perpetuate its anonymity is more to do with the interests of the local authority itself (and, no doubt, the important interests of its employees) than with the interests of the children. That is not a criticism of the local authority’s stance. It is simply a statement of the realities.

I can understand the local authority’s concern that if anonymity is lifted the local authority (or its employees) may be exposed to ill-informed criticism based, it may be, on misunderstanding or misrepresentation of the facts. But if such criticism exceeds what is lawful there are other remedies available to the local authority. The fear of such criticism, however justified that fear may be, and however unjustified the criticism, is not of itself a justification for affording a local authority anonymity. On the contrary, the powers exercisable by local authorities under Parts IV and V of the Children Act 1989 are potentially so drastic in their possible consequences that there is a powerful public interest in those who exercise such powers being publicly identified so that they can be held publicly accountable. The arguments in favour of publicity – in favour of openness, public scrutiny and public accountability – are particularly compelling in the context of public law care proceedings: see Re X, Barnet LBC v Y and X [2006] 2 FLR 998 at para [166].

Moreover, and as Lord Steyn pointed out in R v Secretary of State for the Home Department ex p Simms [2000] 2 AC 115 at page 126, freedom of expression is instrumentally important inasmuch as it “facilitates the exposure of errors in the governance and administration of justice of the country.” How can such errors be exposed, how can public authorities be held accountable, if allowed to shelter behind a judicially sanctioned anonymity? This is particularly so where, as in the present case, a public authority has been exposed to criticism. I accept, as the local authority correctly points out, that many – indeed most – of the matters in dispute in this case were never the subject of any final judicial determination, but the fact remains that in certain respects I was, as my judgment shows, critical of the local authority. And that is a factor which must weigh significantly in the balance: see Re X, Barnet LBC v Y and X [2006] 2 FLR 998 at para [174].

In my judgment the balance here comes down clearly in favour of the local authority being identified.

Accordingly I propose to make an order in the following terms:

“Upon reading the judgment handed down on 16 August 2004

And upon reading letters from the mother dated 6 March 2007 and from the local authority dated 9 May 2007

And the judge treating the letter from the mother dated 6 March 2007 as an application that the local authority’s name should no longer be anonymised

It is ordered that the rubric on the cover sheet of the judgment be amended by inserting the words “and the local authority” immediately after the words “the advocates”

And it is declared that there is nothing in the judgment or in any order of the court or otherwise to prohibit the identification of Blackpool Council as being the local authority involved in these proceedings.”

Accordingly, Mrs B and anyone else who may wish to do so will be able to identify Blackpool Council as the local authority which has hitherto been referred to in this context as X Council.

There is one further observation I wish to make. As McFarlane J said in Re X (Emergency Protection Orders) [2006] EWHC 510 (Fam), [2006] 2 FLR 701, at para [6]:

“The ordinary experience of the family courts is of social workers and social services departments whose professional work is both valuable and appropriately targeted to meeting the particular needs of children and their families.”

I agree with that view, which accords entirely with my own experience in the family courts. But too often this experience goes either unremarked or recorded in judgments where the local authority is not named. If local authorities which merit criticism are to be named then so too surely should those which deserve praise. If the public interest is a reason for naming the incompetent then surely the very same public interest requires the naming of the competent. Otherwise the public may have a seriously distorted impression of the family justice system – and that is very certainly not in the public interest.