X (A Child) (No 2), Re

In this case I handed down a judgment on Friday 10 June 2016: Re X (A Child) [2016] EWHC 1342 (Fam). The judgment was handed down in open court and sent by me to BAILII. The front sheet of the judgment as handed down stated in bold type that “This judgment was handed down in open court”. The front sheet did not contain the rubric which often appears on judgments of the Family Division or the Family Court. (Footnote: ¹) That omission was both principled and deliberate. Given subsequent events, I need to explain why.

A judgment handed down in private in a Family Division or Family Court case to which section 12(1)(a) of the Administration of Justice Act 1960 applies (and the principle is precisely the same when a judgment is handed down in private in a Court of Protection case to which section 12(1)(b) of the 1960 Act applies) cannot be published without the permission of the judge. That is the effect of section 12. The judge may attach conditions to such permission. However, it has been recognised ever since the decision in 1988 of Sir Stephen Brown P in Re W and others (Wards) (Publication of Information) [1989] 1 FLR 246, that section 12 does not of itself prevent publication of the names of the child or of anyone else involved in the proceedings. The identity of the child is protected in certain circumstances by section 97(2) of the Children Act 1989 but even then only so long as the proceedings remain on foot: Clayton v Clayton [2006] EWCA Civ 878, [2006] Fam 83. So, the conditions attached to the judge’s permission to publish a judgment handed down in private frequently include restrictions on identifying the child or others. Hence the form of the rubric to which I have referred.

It is important to understand not merely the purpose but also the effect of the rubric: see Re RB (Adult) (No 4) [2011] EWHC 3017 (Fam), [2012] 1 FLR 466. In that case, I said (Re RB, para 13):

“The rubric is not an injunction … It is not drafted in the way in which injunctions are usually drafted. There is no penal notice. And the procedures required by s 12(3) of the Human Rights Act 1998 and the President’s Practice Direction (Applications for Reporting Restriction Orders) will not have been complied with. But this does not mean that it is unenforceable and of no effect. On the contrary, it is, in my judgment, binding on anyone who seeks to make use of a judgment to which it is attached. And anyone who disobeys it is, in principle, guilty of a contempt of court.”

I went on (paras 16, 18) to explain why:

“16

The rubric is in two parts and serves two distinct functions. The first part, ‘the judge hereby gives leave for it to be reported’ has the effect, as it were, of disapplying s 12 pro tanto, and thereby immunising the publisher or reporter from proceedings for contempt. But the second part, ‘the judgment is being distributed on the strict understanding that…’ makes that permission conditional. A person publishing or reporting the judgment cannot take advantage of the judicial permission contained in the first part of the rubric, and will not be immunised from the penal consequences of s 12, unless he has complied with the requirements of the second part of the rubric. This is merely an application of a familiar principle which one comes across in many legal contexts and which finds expression in such aphorisms as that you cannot take the benefit without accepting the burden, that you cannot approbate and reprobate and that if a thing comes with conditions attached you take it subject to those conditions.

18

So someone who publishes or reports such a judgment in a way which does not comply with the second part of the rubric will, in principle, be guilty of a contempt of court: not that species of contempt committed by someone who breaches an injunction – because, to repeat, the rubric is not an injunction – but contempt in accordance with s 12.”

The text of the current version of the rubric is, as we have seen, somewhat different. But it still contains the same two essential parts: first, the permission and, second, the conditions. So the textual alterations do not, in my judgment, affect the analysis in Re RB.

Now none of this has any application to a judgment handed down in public. The rubric in its standard form applies, as a matter of language, only to judgments handed down in private. But there is a more fundamental point in play here. Section 12 (which applies only to reports of “proceedings before [a] court sitting in private”) does not apply to the contents of a judgment handed down in public. Nor, as a quite separate point, does anyone need a judge’s permission to publish or report a judgment given or handed down in public, unless, that is, there is in place, and there was not here, some specific injunctive or other order preventing publication. It will thus be seen that there was no basis for my including the rubric in my judgment. As I said in Re RB (para 20):

“Since s 12 did not apply, there was no need for me to include the first part of the rubric; and absent the first part there was neither need nor justification for the second part.”

The judgment, in the precise form in which it was handed down on the Friday had been sent to all the advocates the previous Wednesday evening. No one raised with me any point in relation either to the fact that the judgment was to be handed down in open court or as to the absence of a rubric.

On Sunday 12 June 2016 a well-known and respected legal blog, suesspiciousminds.com, published a detailed report and analysis of my judgment. The birth parents were named and a link was given to a contemporaneous newspaper report of the proceedings in the Crown Court which had reported the birth parents as indicating that they would be launching a fight to recover their child. I make absolutely clear that suesspiciousminds.com was fully entitled to publish what it did and cannot, and should not, be criticised for doing so. Publication of the birth parents’ names, and repetition of the material which was already in the public domain, was prohibited neither by statute nor by order. I understand that, following an approach by one of the advocates, suesspiciousminds.com removed the names of the birth parents and the link. That, of course, was entirely a matter for suesspiciousminds.com. I merely record the facts in the interests of transparency.

On the following Monday morning, 13 June 2016, one of the solicitors contacted BAILII asking for the judgment to be temporarily taken down to prevent any further and wider publication of the birth parents’ names. BAILII emailed me asking “Should we take it down?” When this email came to my attention, I responded to BAILII saying No. The judgment remained, and remains, as I intended, publically available on BAILII.

On the Monday afternoon, 13 June 2016, shortly after 2.30pm, the local authority made an application to me for a reporting restriction order (RRO), very much in the usual form, seeking, contra mundum, injunctions restraining the identification of X, the identification of the birth parents and the identification of the adoptive parents. The Press Association reporter, Mr Brian Farmer, was present throughout much of the hearing. I was told by Mr Andrew Bagchi QC, appearing for the local authority in the unavoidable absence of Ms Sarah Morgan QC, and as set out in a written statement by his instructing solicitor, that both the birth parents and the adoptive parents actively supported the local authority’s application.

I asked Mr Bagchi whether the Press Association had been notified in accordance with FPR 2010, PD12I (setting out what was previously in President’s Direction: Applications for Reporting Restriction Orders of 18 March 2005, [2005] 2 FLR 120) and with the Cafcass Practice Note: Applications for Reporting Restriction Orders, also of 18 March 2005, [2005] 2 FLR 111, as amended on 25 March 2015 and set out in the 2016 Red Book p 2563. In response, Mr Bagchi referred me to an email that the local authority had sent to the Press Association at 1.19pm. This read:

“Please be advised that [the local authority] is applying for a RRO this afternoon before [the President]. The matter has been listed at short notice before the President at 2pm in Court 33 at the Royal Courts of Justice.”

No further information was given beyond the bare statement that the matter related to “X [A Child].”

I was concerned about the inadequacy and shortness of the notice given to the Press Association but decided that, in all the circumstances, the least damaging course to adopt, having regard to the various interests involved, was to make an order, essentially in the terms sought, but time-limited so that the matter could come back before me for hearing the following Thursday, 16 June 2016. I was not surprised to receive later that afternoon, after I had made the order, an email from Mr Mike Dodd, the legal editor of the Press Association, drawing attention to the fact that:

“[the] supposed ‘notification’ from [the local authority] … arrived after 2pm and as it gave no proper details about the case, as required by the Practice Direction, and at any rate was far too late, we did not send it out … the President should be aware of the fact that notification was entirely lacking.”

When the matter came back before me on Thursday 16 June 2016, the local authority had issued, on 15 June 2016, a formal application seeking the continuation of the RRO. The local authority was represented by Mr Michael Liebrecht, the birth parents, as previously, by Ms Martha Cover and Ms Katy Rensten, the adoptive parents, as before, by Ms Deirdre Fottrell QC, and X, as previously, by Mr Christopher Archer. Mr Farmer, the Press Association reporter, was present. He handed in a most helpful written Submission by the Press Association dated 15 June 2016 prepared by Mr Dodd (which dealt, amongst other matters, with the important issue referred to in the final sentence of my previous judgment, the reporting of the re-hearing). Mr Farmer also addressed me orally.

It will be recalled (Re X, para 25) that the re-hearing is fixed to commence in October 2016 – it is in fact fixed for 17 October 2016 – and that I had indicated the need for a further directions hearing in the meantime. In these circumstances I decided (a) that any extension of the RRO which I might be persuaded to grant should be time-limited until the conclusion of the directions hearing (now fixed for 4 July 2016) and (b) that all questions about attendance at and the reporting of the re-hearing, including but not limited to those canvassed by the Press Association, should be adjourned to be dealt with at that directions hearing.

The question thus became whether or not I should extend the RRO I had made on 13 June 2016 until the conclusion of the directions hearing on 4 July 2016.

I had little difficulty in concluding that the RRO restraining the identification of X and the identification of the adoptive parents should remain in force.

Mr Liebrecht and Ms Fottrell drew attention to the stress for the adoptive parents brought about by these proceedings and to the need to ensure that this did not cause disruption or detriment to X. Ms Fottrell described, in detail which I do not propose to put into the public domain, the immense distress and anxiety that the adoptive parents have experienced since being notified of the appeal and the enormous pressure on them. They have, she says, and who can blame them, felt helpless and threatened. She submits that, whatever the outcome of any proceedings, X must be protected from exposure and intrusion, whether direct or indirect. X is entitled, she says, to respect for X’s right to private life. Both on a micro level – in the day to day world in which X lives – and on the macro level of the public at large, X should not be identified or identifiable. Ms Fottrell recognises the public interest in the court being transparent and open about what is going on in this case. But, she submits, this objective has been properly achieved by the publication of my earlier judgment which, she says, provides sufficient detail to allow for public discussion and debate. Despite the extensive reporting of the criminal proceedings and the amount of material which is, in consequence, in the public domain, there is, she submits, no need for either X or the adoptive parents to be identified and every reason why they should not be.

I agree with Ms Fottrell. So too does X’s guardian. So too, as it happens, do Mr Dodd and Mr Farmer, who recognise – I quote the language used by Mr Dodd in his written Submission – that the protection of the anonymity both of X and of the adoptive parents is “completely acceptable.”

The much more difficult question relates to the birth parents. Their names, after all, are in the public domain. They were tried in the Crown Court. As mentioned above, they have talked to the media about their “fight”. They were instrumental in the launch of the proceedings which are currently before me. In these circumstances, Mr Dodd and Mr Farmer submit, it is contrary to principle to make any order requiring that they now remain anonymous.

I can well see the force of the points made by Mr Dodd and Mr Farmer. And I have to say that, whereas the arguments in favour of perpetual (or at least indefinite) anonymity for both X and the adoptive parents are extremely compelling, I am very sceptical as to whether anonymity for the birth parents can last beyond (at the very latest) the conclusion of the re-hearing, if indeed that long. But there is, in my judgment, a principled and well-founded reason for maintaining their anonymity at least for the time being.

If the media are permitted to identify the birth parents and to publish photographs of them, the resulting publicity will, in the nature of things, have an impact very considerably greater than if the story is reported without those details: see the well-known words of Lord Roger of Earlsferry in In re Guardian News and Media Ltd and others [2010] UKSC 1, [2010] 2 AC 697, paras 63-64. In the unusual circumstances of this case that impact will fall, albeit indirectly, on the adoptive parents, and therefore X, as well as on the birth parents. There is, as it seems to me, and for the reasons articulated by Mr Dodd and Mr Farmer, no principled basis for protecting the anonymity of the birth parents in their interests or for their sake; the only justification for preserving their anonymity in the short term, and I accept that there is such justification, is the pressing need to protect X, and also the adoptive parents, from the enhanced glare of publicity in the interim.

Ms Fottrell puts the point very clearly: to permit the naming of the birth parents would result in intense media scrutiny and the exposure of them to the media glare, which would in turn increase the pressure on the adoptive parents and heighten the risk of X being identified as the child in the case, even if not to the world at large then at least to those in X’s day to day world who know X but are unaware of X’s story. Identification of the birth parents will only add to the overall intrusiveness and the distress involved for the adoptive parents and X.

Mr Liebrecht makes the important point that the parties are still in the process of gathering the evidence for the re-hearing, while the local authority has yet to formulate its case with the necessary precision – something that has to await completion of the evidence-gathering exercise. He submits that only then will I be in a position to determine, taking into account the positions and submissions of all the parties – and, I would add, the media – how best to manage the coverage and publication of the case. There is force in that submission. Ms Fottrell makes much the same submission.

It was for these reasons that I therefore decided to extend the RRO I had made on 13 June 2016 until the conclusion of the directions hearing on 4 July 2016.

Before leaving the case, there are various matters, helpfully raised by the Press Association, to which I must refer.

First, there is the matter to which Mr Dodd had referred in his email on 13 June 2016 and which he elaborated in his written Submission dated 15 June 2016. He emphasised, as I do, the obligations placed on applicants for a RRO and, in particular, the need to comply meticulously with the requirements I have referred to in paragraph 10 above. Mr Dodd says that the failure to give proper notification to the media is a continuing problem. If that is so, then it is a matter of considerable concern.

Secondly, there is a matter raised by Mr Farmer during the hearing on 16 June 2016, namely that, in the copy of the local authority’s application sent to the Press Association, X’s name and date of birth had been obliterated. How, he asked rhetorically, can the media know whether or not to oppose the application if the identity of the relevant child is concealed? In this connection he referred me to the important judgment of Newton J in A Healthcare NHS Trust v P (by his litigation friend, the Official Solicitor) and Q [2015] EWCOP 15. I share Mr Farmer’s puzzlement. Obviously, the media must be able to identify who the application relates to. Often this will require the name of the child to be spelt out in the application (though not necessarily the precise date of birth), but not always. Thus in the present case it was both unnecessary and would have been wholly inappropriate to refer to X by X’s present name or to specify X’s date of birth. The legitimate needs of the media at that stage would have been fully met by referring to X either as “the child born in [year] formerly known as [name prior to adoption]” or as “the child born in [year] the subject of the proceedings referred to in the judgment in Re X (A Child) [2016] EWHC 1342 (Fam).”

Thirdly, and another matter raised by Mr Farmer, the local authority’s application, while properly omitting the names and address of the adoptive parents (their address being given as c/o their solicitors), set out the birth parents’ present and past addresses in full. There was, in my judgment, no need to do so; their address could also have been given as c/o their solicitors or as a confidential address notified to the court.

I add this. Those drafting applications for a RRO need to remember that information set out in the application may not be known to the media; indeed, as happened in at least one case in which I was involved when at the Bar the making of an application for a RRO may alert the media to a ‘story’ of which they were previously quite unaware – with what may be unfortunate implications and ramifications if the RRO being sought is not, in the event, granted.

There is one more matter that, in the interests of transparency, I must address. I have referred in paragraphs 7-8 above to various steps that were taken following the handing down of my previous judgment. No doubt these steps were taken in complete good faith and for what seemed good reason. In fact, as I have explained, the request that the judgment be taken down from BAILII was misconceived, the assumption seemingly being that the omission of the rubric was a mistake whereas it was deliberate.

This raises a matter of some considerable importance. I stress the two cardinal points as they apply to judgments given in the Family Division or the Family Court:

It is a matter of public record that both Dr Julia Brophy, formerly of Oxford University, and Dr Julie Doughty, of Cardiff University, are currently engaged in research, funded by the Nuffield Foundation, into various aspects of Transparency in the family justice system. That research has my full support. In the course of her research, Dr Doughty identified a number of family judgments on BAILII containing identifying details. She brought her concerns to HMCTS on 18 May 2016.

HMCTS responded with an email to Dr Doughty sent, as it happened, on 16 June 2016. The email, which I had seen and approved before it was sent, was as follows:

“The judgments identified as part of your research have been removed from BAILII and will, if the judges concerned think appropriate, be amended and re-published. In those cases where the judge has retired, the judgments have been referred to the President of the Family Division.

Judges are responsible for anonymising and sending their judgments to BAILII. Judges may ask for the assistance of counsel, solicitors or others in the task of anonymising the judgment but the responsibility for checking the judgment and sending it to BAILII is the responsibility of the judge and the judge alone.

HMCTS takes the security of personal data very seriously. Where a sensitive data breach is reported, our specialist Information Assurance and Data Security Team are notified and a rigorous impact assessment is conducted. If, as part of that process, it is considered to be high impact then the ICO is informed.

In terms of work to be done now, HMCTS is reviewing its internal guidance to judges’ clerks on the protocols for releasing judgments to BAILII, and is currently discussing this with the President of the Family Division to ensure it aligns with judicial guidance. The President of the Family Division has indicated that he intends to issue fresh guidance on the anonymisation of judgments following the publication of research on the issue which is expected in the summer. He is likely also to publish fuller guidance to judges on sending judgments to BAILII and taking them down from BAILII.

We have made improving the process for removing judgments a priority. Currently, if BAILII is notified of a potential error and the judgment needs to be removed at short notice, they have specific contacts in the Judicial Office who will facilitate that process. Work is also underway to make this process more efficient by clarifying the roles and process within the Judicial Office and HMCTS for contacting judges to consider taking judgments down from BAILII, making amendments and re-publishing them.

While we work to put these new arrangements in place if, as part of your research, you find any other judgments which you believe to contain an error please contact the Judicial Office press office on 0207 073 4852 and they will ensure that the judge responsible for the judgment is contacted. Where a judge cannot be contacted, or has retired, the matter will be referred to the President of the Family Division.”

I draw attention in particular to the second paragraph and to the final paragraph.

The preceding judgment was prepared and sent to the parties in draft shortly before the directions hearing on 4 July 2016. For reasons which there is no need for me to elaborate here, matters were not so far advanced by that hearing as I had hoped and intended. The evidence-gathering exercise I referred to in paragraph 22 above was still not complete. I was therefore not in a position to determine how best to manage the coverage and publication of the proceedings. In these circumstances I decided that these were matters which had to be adjourned again, to a further directions hearing which is listed for 25 July 2016.

Consistently with the analysis set out above and which I need not repeat I likewise decided to extend the RRO I had made on 13 June 2016 and extended on 16 June 2016 until the conclusion of the next directions hearing.

I should add that both Mr Farmer of the Press Association and Mr Paul Magrath of the Incorporated Council of Law Reporting were present during the hearing on 4 July 2016. I gave both an opportunity to address me. Neither sought to dissuade me from the course set out in paragraphs 33-34 above.