J (A Minor), Re (application for permission to Appeal)

A few weeks ago I circulated the draft judgment arising from public law care proceedings in the case of Re J [2016] EWHC 2430 (Fam). The hearing had taken place between 25^th and 29^th July 2016. In September I circulated the draft copy of my judgment to the parties so that they could know of my decision and make plans for the child accordingly. I deferred handing down that judgment until the parties could reconvene in October.

At a hearing on 5^th and 6^th October I heard an application by Ms. Flowers, on behalf of the local authority, for a Reporting Restrictions Order (RRO). I also heard the various and differing positions advanced by each of the other parties, now recorded in a separate judgment: (Re J (RRO) [2016] EWHC 2593 (Fam)), which has been handed down this morning. I delivered judgment in Court on 6^th October, I had intended that both judgments would have gone into the public domain on that day. However, at the very last moment my attention was drawn to a case in which Keehan J had deferred judgment so that the timing of the judgment could be woven into the life, timescales and needs of the child. I deferred release of the judgment until today, the first day of half term, in order to minimise the fallout for the child himself and to ensure that he had adults around him to support him from any impact the publication of the judgment might have on him directly or indirectly.

I was told by Mr. Maddison that the father was greatly enthusiastic about that proposal and that J’s guardian also supported it. As it was mooted, having originally been suggested by Mr Brian Farmer (Press Association), each of the advocates agreed that it was the appropriate way forward. I pause there to say that I found that consensus a helpful and positive approach towards the child at the centre of this process. When all the parties are able to agree a way forward on any issue in relation to a vulnerable child, the experience of this Court is that the child is invariably better protected. If I may say so, I was particularly encouraged that the press were so cooperative towards the proposal.

Rather less reassuring, though, was the immediate application made by Ms. McMahon, at the conclusion of the judgment on the 6^th October, for permission to appeal. One of the reasons, in my judgement, that the rules permit a reasonable period (twenty-one days) for a party to consider appeal is because it is recognised that following the heat of litigation parties will often want the opportunity to reflect calmly and consider whether it is appropriate to pursue appeal. Sometimes that can be little more than a courtesy to the judge who will always have laboured to get the decision and the reasoning correct, whether that is achieved or not.

Here there was particular benefit in a period of reflection because the application for permission to appeal could only really have been evaluated by reference to the substantive judgment itself and, of course, at that point neither Ms. McMahon nor her clients had the advantage of seeing it. The indicated wish to appeal, on that occasion, could only, therefore, have been advanced properly on the basis that Associated Newspapers Limited had identified some broad point of principle beyond the actual facts of the case that, in their judgement, required challenge.

Earlier this week I took the unusual course of releasing both judgments in order that Associated Newspapers Limited could have the opportunity properly to engage in that important evaluative exercise, one which Ms. McMahon has, herself, during the course of her submissions, characterised as a ‘difficult balance’.

There was a second and subsidiary reason for taking the course that I did. Encouraged by the Press response to the postponed judgment I thought it would be helpful to foster that cooperative relationship in order better to protect the child. I do not regard this as in any way comprising the important and independent obligation on the press to scrutinise this process. Indeed, it seems to me to be wholly consistent with the philosophy underpinning the codes of practice. I embargoed any distribution of the judgment until today. I emphasise that my objective was to give each of the parties every opportunity to assess their position and to marshal their arguments on any application for permission to appeal.

For the avoidance of doubt, I indicated on 6^th October that the timescales in respect of any application to appeal would only commence as of today. This morning Ms. McMahon has renewed her application for permission to appeal the orders arising from my analysis in the Reporting Restriction Order judgment. She told me that the judgment had been shared amongst the lawyers and in-house counsel at Associated Newspapers Limited but, she advised me, it had not been seen by the editorial staff. That, of course, was an entirely proper course for her clients to take. However, the difficulty, which I had not appreciated hitherto is, apparently, that a decision to pursue an appeal can only go forward on the instruction of the senior editorial staff, or at least their heavy participation in the decision making process. As they have not had this opportunity Ms McMahon’s instructions are not yet finalised. As I indicated during the course of submissions I would have been happy for the draft judgments to be released to senior editorial staff on the same terms as they were released to their lawyers, had an application been made.

I emphasise this, because there is at the heart of this case a little boy who requires stability, peace and privacy to adjust to the extraordinary circumstances of his yet very young life. Lawyers can sometimes forget that the delay in taking decisions, which they may see as dryly prescribed by procedural rules, has a real impact on the lives of individuals and families. Therefore, I would make a request to Ms. McMahon’s clients that they give this decision, i.e. whether they are further to pursue permission to appeal, urgent and immediate consideration, bearing in mind the stress that it reintroduces to the child and his father who I know were hoping that today might bring closure to this corrosive and protracted litigation.

The application made today is predicated on two arguments. Firstly, it is said that in the RRO judgment I erred in my balancing of the relevant facts in the framework of the applicable law. Secondly, and in the alternative, it is said that the judgment itself raises issues of such general importance that they require clarification by the Court of Appeal. It requires to be stated that none of the parties involved has sought to appeal my substantive (Care Proceedings) judgment either as to its findings of fact or in respect of its welfare analysis. Indeed there has been no appeal against any finding, at any stage in the Children Act proceedings.

As the arguments were teased out in the course of submissions advanced primarily by Ms. McMahon, but supported vigorously by Mr. Baker, on behalf of the mother, it became clear that it was very difficult to disentangle the two arguments. They are facets of the same point.

It is said that insufficient weight was given in the judgment to the Art.10 rights of the mother and, to a lesser extent, her own Art.8 rights. She should, it is said, be able to talk about her experience of the court process in relation to J and its impact on her, her life generally and her view of J, which is a unique one. Effectively to prohibit that, it is argued, is not to give sufficient weight to the mother’s right to talk about her own family life. This, it is said, is a synthesis of the mother’s Article 10 and 8 rights.

More broadly, Ms. McMahon identifies the ‘general principle’ which she says requires clarification by the Court of Appeal as being: “How are the welfare considerations of a child, which go beyond Art.8 rights, to be fed into the balancing exercise which the court must undertake?”. I quote this directly from Ms McMahon in the course of her submissions. To be fair to her the question was only formulated, in these terms, when I pressed her to do so, during the course of exchanges. If there is a point of general principle there, it will plainly require some refinement. For my part, I do not consider that Ms McMahon has identified a general principle to be considered.

The local authority, the father and the child resist the permission application and make no application themselves.

In the course of her arguments Ms. McMahon took me to the case of Clayton v Clayton [2006] EWCA Civ 878, [2006] Fam 83, [2006] 3 WLR 599, [2007] 1 FLR 11, [2007] UKHRR 264and to the much earlier case of Re W (A Minor) (Wardship: Restrictions on Publication) [1992] 1 WLR 100, a decision of the Court of Appeal. Ultimately, as she recognised, the law in this particular area is now settled. It has been described by Baroness Hale, in R (C) v The Secretary State for Justice [2016] UKSC 2; (citing Re S (a child) (identification: restrictions on publication [2005] 1 AC 593), as ‘trite law’. As I set out in my judgment, what is required is a ‘parallel analysis’ of the competing rights and interests in play in which the starting point is presumptive parity. Just as Article 10 and 8 fall to be considered on an equal basis, so too there is presumptive parity when balancing competing Article 8 rights, even where the balance engages the Article 8 rights of a child. The exercise requires the Court to examine both the justification for interference with the right and the proportionality of the interference. That is what I have endeavoured to do in the course of my judgment.

Analysing the scope of the RRO, I referred to the fact that the BBC had, before the case was heard, or at least until judgment was delivered, indicated that they were interested in interviewing the mother about her experience. The proposal was that she was to be anonymised and silhouetted to conceal her identity. In the event the BBC has not made any application itself. Ms McMahon has however taken up the point on behalf of her clients who, she tells me, would wish to undertake a similar interview in printed format.

The difficulty here is that the assertion that the mother should be able to speak to the media does not transpose into any practical option which avoids a collision with J’s own right to privacy. As I have said, it is impossible to see how the mother could advance her own perspective of the case without asserting her genuinely held but distorted belief that her son is gender dysphoric / identifies as female. Indeed, as Mr Baker accepts on her behalf, this is precisely what she wishes to do. In my assessment, if the mother were to discuss ‘her perspective of the case’, this could only be achieved by reference to the details of J’s life and his behaviour, as she perceived it, whilst living with her. In what I have called the ‘striking and unusual’ circumstances of this case, the detail is likely to lead to J being identified, irrespective of any anonymisation or silhouetting of the mother.

Accordingly, there are three dangers likely to follow from any interview of the type contemplated here. Firstly, information not included in the judgments, but likely to cause J great distress, entering the public domain. Secondly, the unusual nature of the details of his life will most likely identify J to those who have lived around him as the child subject to these proceedings. Thirdly, it will be obvious to J, for like his parents he is an intelligent child, that it can only be his mother who released that highly private information about him. On the last point that has real and negative resonance for the mother and son relationship which, if at all possible, the Local Authority wants to promote and repair. For the reasons I have given in my substantive judgment I share and endorse that approach.

On a practical level I do not see how a journalist or editor would be able to sift details of J’s life, from the mother’s account, into those which are anodyne and safe to publish from those which would likely be a significant violation of his Article 8 rights. This is a highly fact specific balance that I do not see can easily, if at all, be undertaken by anybody who has not heard the evidence in the case.

Accordingly, I see no merit, with respect to Ms. McMahon and Mr. Baker, in the application for permission to appeal nor do I identify any general point of law for the reasons I have set out above. I therefore refuse permission to appeal.