Z County Council v TS & Ors

This case concerns a child called ‘A’ who will shortly be 11. He suffers from significant learning difficulties so that he functions much below his chronological age and is likely to be dependent on adult care indefinitely into his majority. On 24^th May 2007 I gave a judgment in which I held that threshold criteria, pursuant to Section 31(2) of the Children Act 1989, had been established in relation to ‘A’. On 29^th April 2008 I gave a further judgment approving a care plan for the ultimate rehabilitation of ‘A’ with his mother under the auspices of a care order. This supplementary judgment is concerned only with issues of disclosure and publicity.

Before the original trial I had authorised the hearing of the case in public subject to a schedule of anonymisation that covered all parties and all witnesses. In particular the trial was attended throughout by representatives of ITV Wales. In the aftermath of the first trial a documentary programme was made and transmitted on “Wales This Week”. It was an entirely proper documentary in which the requirements of anonymisation were scrupulously observed. It is now intended to make a further programme and it is this that has given rise to the present application.

At the conclusion of the second trial leading counsel, on behalf of the local authority and a social worker known as Social Worker ‘X’, provided to the parties a skeleton argument. It was agreed by all parties that this application could not be heard then. It was in fact heard (by video link) by me on Friday 13^th June, 2008. By then the mother was acting in person and did not have the skeleton argument; moreover, as at all times, ITV Wales did not have legal representation. In order not to waste time and money yet to be fair to all parties, I suggested that I should hear the submissions of counsel for the local authority and Social Worker ‘X’ and for the grandparents and the guardian and that I should then permit the mother and ITV Wales to make submissions in writing subject to counsel’s right to respond in writing. That was agreed by all as the best practicable solution available.

Subsequently I received submissions from ITV Wales in a letter dated 26^th June 2008, a submission from the mother dated 26^th June 2008 supported by a statement dated 24^th June 2008 and a written response from leading counsel for the local authority and ‘X’ dated 4^th July, 2008. I had indicated on 13^th June 2008 that it would be my intention to put my judgment into writing and hand it down without the need for attendance by any party. This I now do.

It will be convenient initially to refer to the position of the grandparents and the guardian. The grandparents, who are ‘A’’s primary carers, are opposed to any relaxation of the anonymisation provision and rely upon the arguments advanced by leading counsel on behalf of the local authority and ‘X’. The guardian, through leading counsel, takes the stance that her obligation is to preserve the non-disclosure of ‘A’ and therefore the non-disclosure of any identity or information which might tend to identify ‘A’. To that extent leading counsel also adopts the submission of leading counsel for the local authority.

The current position is that there is no restriction on publicity in this case other than the requirement to comply with the schedule of anonymisation. That involved necessarily obscuring the mother’s face when she appeared on the first TV programme. There was no restriction on the reporting of my judgments or of any comments, criticisms or observations that I made nor was there any restriction on the reporting of or commenting on the process involved in these proceedings. That of course marks this case out as unusual in conventional family proceedings.

It also means that the greater part of the submissions advanced by the mother have no direct relevance. Much of it involves the cases which bear on the need for justice being done in public. Unusually for a family case this is exactly what happened here and there are no restraints other than compliance with anonymity. The mother also complains that she has not been permitted to cross-examine ‘X’ on her statement. That is true. The reason is that the truth or otherwise of ‘X’’s assertions have little bearing upon my conclusions on the point of disclosure as will appear in this judgment.

I remind myself that since the decision of the Court of Appeal in CLAYTON -v- CLAYTON [2007] 1FLR 11 the automatic restrictions of Section 97 no longer apply. The court can effectively only continue the injunction by justifying the same on the basis of an analysis of the competing Article 8 rights of the parties and such rights as exist under Article 12 of the European Convention on Human Rights as required by the House of Lords in Re S(A Child) (Identification: Restrictions on Publication) [2005] 1FLR 591. In so doing I am entitled in this particular case to give pre-eminent consideration to the Article 8 rights of ‘A’ in resolving any dispute.

There are a number of relevant features from ‘A’’s point of view. He lives in a rural community where, because of the comparatively unusual nature of his disability, he is more likely to be identifiable than if he lived in a massive conurbation. In the area of this County Council there are only two schools, one in the north and one in the south, which cater for needs akin to those of ‘A’. The identification of the school is therefore a relevant issue. He is cared for primarily, (but not exclusively), by his grandparents who oppose any relaxation of anonyminity . His mother (who shares increasing care of him) clearly wants anonymisation relaxed. When she was represented it was said that she agreed that ‘A’ should not be identified. Her own submission in paragraph 28 is equivocal. I am, however, abundantly satisfied on the evidence that ‘A’’s welfare positively requires that he be protected from identification.

The mother in this case has an agenda of her own in which she wishes to use publicity to highlight all her own complaints in this case, some of which, of course, have real substance as appears from my first judgment. ITV Wales have no such agenda and will, I have no doubt, seek scrupulously to avoid the identification of ‘A’. The difficulties in this approach are twofold. First once disclosure is allowed it is disclosure to all the world and not every organ of the media may be as scrupulous or indeed as concerned to protect the identity of ‘A’. Secondly, I doubt that the mother shares that concern to the same extent and, as I have indicated in earlier judgments, I have serious doubts about her judgment and that certainly extends to the assiduous protection of ‘A’’s identity.

It follows that my guideline in this case is to refuse the disclosure of any person that not only would identify ‘A’ but might reasonably in this case lead to his identification. In my judgment it is not enough that it is unnecessary to identify the local authority or ‘X’; in order to prevent that disclosure it seems to me that I need to be satisfied that it might reasonably lead to the identification of ‘A’, no more and no less. Still less in my view should the court prevent the disclosure of ‘X’ simply to save her the annoyance and discomfort of being pursued by ITV Wales and the mother over the criticisms of her found in my judgment. Of course it has always been (and remains) possible for the mother to make a formal complaint against ‘X’ to the Care Council for Wales. However, as I understand it, she has not chosen to do so. In my view the decisive issue in any balance in this case is the Article 8 rights of ‘A’ reinforced by the demands of his welfare that he be not identified outside the scope of these proceedings. I do not disagree with the judgments of Munby J, Ryder J and MacFarlane J that are cited in the skeleton arguments, I merely conclude that in this case the position of ‘A’ merits special protection.

Applying the guideline and following through the consequences of my conclusions about ‘A’’s welfare, I turn to the specific issues of identification. I am wholly satisfied that the disclosure of the identity of any family member (and in particular the mother) will not only reasonably tend to the identification of ‘A’ but will be highly likely to have that consequence especially if (as inevitably will be the case) disclosure once made is in effect made to all the world. I had wondered whether I could allow the mother’s face to appear without her being named but I do not think that will guard against the risk of identification of ‘A’. I am also satisfied that the school and therefore staff members at the school should not be identified on the same basis. As I have said this is a lightly populated rural area and information can all too easily get out. What I have, however, found more difficult is the question of the identification of the local authority or social worker ‘X’.

Having thought carefully about this I am satisfied that I should not allow the disclosure of the local authority. They hold the care order in respect of ‘A’ and will continue to be closely involved in his welfare. Even assuming that the rehabilitation of ‘A’ to his mother is achieved and the care order discharged, the needs of ‘A’ are such that the local authority will continue to be closely involved. If the authority are named in the context of my judgment, particularly if (as of course there can be) there is discussion about their role in ‘A’’s life, there is, for the reasons already appearing in the judgment, at least a serious possibility that ‘A’ will identified.

That leads me finally to the position of ‘X’. She no longer works for this authority or has any connection with it. Thus her only involvement with ‘A’ was in the past: although my language was moderate, it is readily apparent from my first judgment that I had criticisms to make of her professional conduct. I have also observed that it is no part of the court’s role to protect her from scrutiny any more than it is the court’s role to facilitate scrutiny at the expense of ‘A’’s privacy. Nothing in my current order of course prevents a complaint by the mother to the Care Council for Wales. The only question for me, in my opinion, is whether the identification of ‘X’ might reasonably lead to the identification of ‘A’. In my view it is at least a reasonable possibility that it would do so. ITV Wales and the mother have different interests in respect of ‘X’ but the pursuit of these interests depends on her dealings with ‘A’. Again for all the reasons already set out in this judgment, particularly ‘A’’s vulnerability and the fact that his area of Wales is so lightly populated any sustained inquiry in public as to ‘X’’s conduct would inevitably lead back to ‘A’. For that reason, and effectively that reason alone, I am not prepared to allow disclosure.

It follows that I decline to vary the present order which for the reasons set out herein is confirmed indefinitely. This does not render any process secret as its entirety was public and there is no restraint on the discussion of any issue raised in it or of the merit or otherwise of the judgments of the court. What it does do is protect the privacy of ‘A’ and that is exactly what his welfare requires.