Cumbria County Council v M and F

Issues arise within continuing care proceedings concerning five children aged 10 and under that began in October 2013. In March 2014, a fact-finding hearing took place and I gave judgment on 28 March. A final hearing to settle the children's future will take place in October.

The proceedings arose from the death of a sixth child, P, in December 2012 at the age of 13 months. My findings in relation to her death have not been made public to avoid prejudice to any criminal proceedings that may be brought.

The fact-finding judgment also records, but does not make findings about, alleged shortcomings in the investigation into P’s death. The judgment has been disclosed to the following agencies:

The Chief Executive of Cumbria County Council

The Statutory Lead Member for Children’s Services, Cumbria County Council

The Chair of Cumbria County Council’s Scrutiny Advisory Board - Children and Young People

The IRO service manager for Cumbria

Ofsted

The Independent Chair of the Cumbria Local Safeguarding Children’s Board

The Department of Education (for the attention of the national panel of independent experts of Serious Case Reviews)

The Chief Constable of Cumbria Constabulary

The Police and Crime Commissioner for Cumbria

The Independent Police Complaints Commission

The Crown Prosecution Service

The Chair of the relevant NHS Foundation Trust

The Care Quality Commission

HM Coroner

The Chief Coroner for England and Wales

During the hearing, the legal team representing the children produced a Schedule of Failings in which the investigation is analysed in greater detail. That document has been disclosed to some, but not all, of the above agencies.

This summer, HM Coroner will reopen the inquest into P’s death. The parents are currently on bail and a charging decision will not be made for some months.

The five children are in foster care. Mindful of the inquest and possible criminal proceedings, the local authority applied for a reporting restriction order in very wide terms. I heard the application on 11 July and made an order in narrower terms. My reasons are contained in a formal note of the judgment given that day.

In the wake of that hearing, the media has applied for disclosure of the fact-finding judgment and the Schedule of Failings.

In this judgment, I will not repeat matters relating to the facts of the case. I will however, at the request of the media, record two practice issues that arose during the reporting restrictions hearing and give my decision in relation to the disclosure application. I have received oral and written submissions from the parties to the proceedings and written submissions from Ms Zoe Norden, In-house Lawyer for Guardian News & Media on behalf of all the media organisations.

The local authority's application was robustly opposed by eight media organisations representing a wide cross-section of the serious print and broadcast media. Essentially they argued that what was being asked for was far too wide.

I comment on two aspects of the matter.

The first is that none of the parties within the family proceedings presented their arguments in a timely fashion. By an earlier order, I allowed for the application to be made and served in accordance with the Practice Direction, and for the arguments of the parties to be in the hands of the media in advance. As it happened, the parties’ submissions were lodged on the eve of the hearing and even on the morning itself. So late were the documents that the arguments of the media arrived before those of the parties. I remedied this by making a provisional ruling and allowing the media the final word about the scope and drafting of the order before it came into effect. This led to a productive dialogue and an agreed draft reflecting my overall ruling.

The other issue concerns the breadth of the order originally sought. It would have had the effect of concealing for the next 15 years the names of any of the family members, including the child that died and any of the agencies concerned and the geographical area in which the events occurred. The eventual order protects the children and some, but not all, family members. It has a much narrower geographical focus and as a result conceals the identity of one agency only.

In presenting its application, the local authority indicated that it was asking for the widest restrictions on the basis that the court could cut back on its request. That scatter-gun approach is inappropriate in applications of this kind. It is the responsibility of any applicant, particularly if it is a public authority, to analyse the need for restrictions and only to seek those that can reasonably be justified.

Ms Norden seeks disclosure of the fact-finding judgment and of the Schedule of Failings to the media's legal advisers for legal purposes. As matters develop, the reporting restriction order may need to be revised and the media needs to know the facts when deciding whether to make any application. She points out the difference between disclosure to legal advisers and disclosure to journalists, a distinction acknowledged in the Practice Direction.

On behalf of the children, no objection is taken to the media’s application.

The application is opposed by the local authority and by each of the parents. They argue that care proceedings are held in private, that it is unnecessary for the media to see the documents to allow it to consider its position, that there is a risk of leakage from legal to editorial staff, that there is a risk of prejudice to any criminal trial from such a leak, that disclosure of alleged shortcomings by agencies might be unfair to the agencies, and that any disclosure might add to the pressure already being felt by the family at a critical time. It is suggested that the matter should be reconsidered following the hearing in October.

The apprehensions felt by the parties about a leak of information in this case has been heightened by a breach of confidentiality by a local newspaper. A junior reporter saw a copy of the local authority's application for reporting restriction order and contacted the local authority to ask questions about it. The management of the newspaper has apologised and taken steps to prevent any repetition.

The legal framework concerning the disclosure of information from proceedings has recently been summarised in detail by Baker J in A Local Authority v A Mother and ors. [2014] EWHC 278 at paragraphs [10]-[26], and does not require repetition. That decision concerning an application for disclosure to the police.

In this case, the media (unlike the police) had a right to attend the hearing, but not to report it. Had a journalist sat in court while judgment was being delivered, it is unrealistic to say that he or she would not be entitled to reflect on its contents when deciding what view of to take of any application for reporting restrictions. That being so, the case for disclosure of the information to a legal adviser gains strength, albeit that legal advisers, unlike journalists, have no right to attend the proceedings.

I find that in this case the balance falls in favour of disclosure of the fact-finding judgment, but not the Schedule of Failings, to identified legal advisers to the media for an identified purpose and subject to strict controls. My reasons are as follows:

The media lawyers need to know the nature of the court's findings to allow them to consider the justification for the continuing reporting restrictions on an informed basis.

This is particularly so in the case where the conduct of public agencies is under scrutiny.

I do not anticipate any harm or unfairness coming to the parties to the proceedings or to any agencies as a result of this limited, controlled disclosure. The conditions I shall impose will effectively prevent any leaking of the information beyond legal advisers.

This can reassure family members and eliminate any risk of prejudice to other proceedings.

Delaying a decision until these proceedings are concluded will achieve nothing, and would create expense and delay while the media was put in the picture at that point.

The Schedule of Failings is a detailed document from a single source, the Children's Guardian. It is not necessary or appropriate for this to be disclosed to the media at this time. All the necessary information is in the judgment.

Disclosure of the judgment will be strictly subject to these arrangements:

Before disclosure takes place, a senior legal adviser in each of the seven participating media organisations must give this written undertaking to the court:

That the copy of the judgment that they will receive will be kept in a secure place within the legal department. It will not be photocopied, e-mailed or put into any electronic form.

That the judgment is to be read only by legal advisers for the purpose of considering whether to make any application in relation to the reporting restriction order or other issues concerning disclosure of information from the proceedings.

That it is understood that it will be a contempt of court giving rise to criminal penalties if this undertaking is breached.

Upon receiving the undertakings from the relevant individual at each organisation, the judgment will be sent electronically by my clerk to each of those specific individuals. The lawyer at the relevant organisation can confirm that the electronic copy will be deleted, once a copy has been printed and that they will only save a hard copy of the document, in the terms set out above at paragraph 21(1)(i).

I will consider any application for disclosure of the judgment to any other media organisation that offers the same undertaking.

I invite the parties to submit an order reflecting this decision.