Birmingham Women’s and Children’s Hospital NHS Foundation Trust v KB & Ors

This judgment is to be read with those reported at Birmingham Women’s and Children’s Hospital NHS Foundation Trust v KB LB, Fatima and Others[2024] EWHC 3292 and as Birmingham Women’s and Children’s Hospital NHS Foundation Trust v KB LB Fatima and Others [2025] EWHC 1292.

Fatima, in respect of whom decisions have already been made by this court has, following the Courts determination undergone surgery for a tracheostomy. Treatment for her and training for her family continues, with the intention that she will be fully discharged to live at home with her parents. It is anticipated, or at least hoped, that the process by which she will be fully discharged home will be completed by a date later this year.

The matter has been restored to court to consider the question of whether, and if so to what extent the Reporting Restriction Order (RRO) made on 18^th December 2024 and varied within the lifetime of these proceedings should continue. It was always anticipated that this aspect of the case would return for further consideration following the hand down of the Supreme Court’s judgment in Abbasi and others [2025] UKSC 15 since at the time the substantive decisions were made in respect of Fatima, all recognised that the imminent decision in Abbasi was likely to be pertinent to the circumstances to be considered by this court. When the order restricting publication of information was made in this case it was expressed as a reporting restriction order. All are agreed that following the detailed consideration by the Supreme Court in Abbasi, in particular para [48]- [51] of the nature and effect of such an order, it is better expressed now perAbbasi in terms of injunction.

The Trust in that context applies to extend the existing order until 4 weeks after Fatima is fully discharged home. It seeks to prevent the naming of all treating clinicians as well as those who gave evidence and were second opinion doctors. This is not a case in which anyone suggests that the identities of Fatima or her parents should be protected by any extension. Fatima’s parents, take no issue with the continuation of the injunction for the proposed period of extension. There is some disagreement as to the scope of the injunction which it will be necessary to consider below. The parents invite clarity as to the effect in this case of the application of the residual restrictions in place under s 12(1)(a) of the Administration of Justice Act 1960.

In responding to the application made by the Trust, the parents advance their own position which in essence amounts to this. The Court’s decision on the issue of withdrawal of life sustaining treatment generated a certain amount of media interest. Fatima’s parents have been contacted by various media organisations expressing interest in interviewing the parents in connection with the human-interest aspects of their experience. Fatima’s parents would like to accept invitations to give interviews and to, as they put it ‘tell their story'. They are anxious in so doing to know what identities or details they may give and not to find themselves inadvertently either in breach of any continued injunction or outside any restrictions of s 12 of the AJA. As to the latter point they invite either this court’s interpretation/critique of the decision of the Supreme Court’s judgment in Abbasi, as to which they submit para [120] has introduced confusion, or - should this court not be attracted to that course - as an alternative, discharge in whole or variation in part of that which would be prohibited by s12 AJA with explicit detail by way of schedule to any order of what may or may not be reported. Finally, they invite permission (insofar as it is not material falling within PD12G) to disclose some of the documents from the proceedings to certain organisations and entities and there is a difference of view between the parents and the Trust as to whether if documents are to be disclosed that should be in redacted form or otherwise.

The Guardian supports the application for extension of the order by the Trust until four weeks after Fatima is fully discharged. She is neutral as to the Parents’ position on clarification or discharge in respect of the application of Section 12 of the AJA save that she would not support that having the effect of permitting the publication of matters which should not (even on the parents’ case) be permitted. She invites, if the Court reaches the point of discharge, consideration to an order which replicated the effect of a standard transparency order. It is a curiosity of this case that, as Ms Cheetham KC observes, by a few months only it fell to be determined before the coming into effect of Practice Direction 12 R which would have, at least in the case of a Reporter, given access as of right to much of that which has been under discussion at this hearing.

The Court in Abbasi considered in detail at para [54] – [82] the circumstances in which the High Court has jurisdiction to make (or continue) injunctions protecting the identities of clinicians and other hospital staff who are involved in the treatment of children when applications come before the Court in proceedings concerning the withdrawal of life sustaining treatment for those children. The jurisdictions arising from the Supreme Court’s consideration may, as is plain from paragraph [100] conveniently be distilled into the following three categories:

The Court contemplated four distinct situations in which proceedings in relation to life sustaining treatment might come to an end, and the extent to which in each situation the court retains jurisdiction to make or continue injunctive relief:

In circumstances where the subject child dies, then beyond what the Supreme Court characterised as a ‘cooling off period’ jurisdiction is no longer available under the parens partriae jurisdiction. Since an injunction albeit made for the protection of the child, would have the effect of conferring protection also on the interests of the clinicians, the extension of the injunction for the cooling off period is justified on an equitable basis permitting clinicians to take, should they wish, their own steps to apply for continued protection - see para [66].

In Fatima’s circumstances the parens partriae jurisdiction remains available, since she continues to live, and falls within the third of the situations contemplated at [101]. Importantly she is also continuing to be treated by the Trust, and it is that which permits the applicants here to invoke the jurisdiction. See paragraph [111]: ‘Where the child continues to live after the proceedings have ended, the court retains its parens patriae jurisdiction. However, it could only be invoked by NHS trusts in order to justify the continuation in force of orders such as the Abbasi and Haastrup injunctions, or the grant of fresh injunctions, if they were continuing to care for the child.’ [emphasis added]

Whilst this Court is not considering a ‘cooling off’ period after a child’s death. the point of wider application made at [66] as to the desirability of having a fixed duration for the injunction remains. Within that context a ‘fixed’ duration must carry with it a quality of being an ‘identifiable’ period since the purpose of it is to allow those who may need to take action to know the time within which they have the opportunity to take it. It follows that in this case where there is no dispute as between the parties that the parens patriae jurisdiction is available, it is nevertheless important, as developed by Mr Davy KC in his oral submissions, to have an eye on the fact that, although all agree that there should be a continuance of injunctive relief until four weeks after Fatima is fully discharged, the date when that may happen is uncertain, dependant as it is on the progress of treatment and training. How then are those who are bound by the injunction to know when the four weeks have expired, and by the same token, those who may seek to apply for further injunctive relief on a different jurisdictional basis, to know the date by which they must do so? I shall return to this below.

The differing positions as to the scope of any injunctive relief have been the main focus of the argument at this hearing. The trust invites an order which prohibits identification of those clinical staff who were witnesses directly involved in the proceedings, the second opinion doctors and (at the outset of this hearing) ‘any individual – medical nursing or other healthcare professional – with responsibility for the provision of care and treatment to Fatima’ . The parents acknowledged that there may be a legitimate basis for anonymising clinical staff who were directly involved in the proceedings and whose names are to be set out in Schedule 1 of the order, but argued that the justification for injunctive relief preventing the identification of any healthcare staff involved with Fatima (but not connected with the proceedings) was going too far. In particular Ms Cheetham submitted there was no evidence that there had yet been any disruption or abuse of the sort which would justify it. As the hearing developed, and secondary to that primary position, the parents submitted that if there were to be a prohibition on naming those caring for Fatima, it should be expressed as ‘the individual – medical, nursing or other healthcare professionals named in schedule 1’.This, Ms Cheetham KC argued would not only provide the parents with certainty as to who they could not name, since there would be a clear list of names set out in the accompanying schedule, but also had the attraction of being consistent with the summary of conclusions at [182: (11)] of Abbasi which reads: “(11) The individuals whose identities are protected by such injunctions should be identifiable by reference to the court’s order.”.

Both the Trust and the Guardian contend that it is impracticable and unrealistic to name all those looking after Fatima now and for the remainder of her stay in hospital. It would necessitate for a child of such complex needs, the naming of very large numbers of health professionals from a wide range of different teams. Added to which each time a new member of staff joined (or left) the trust’s employment, whether permanently or for example as locum cover, that would require amendment. Ms Scott with whose position Mr Davey KC agreed, contended that the specificity on which the Supreme Court placed emphasis was, for good reason, expressed in terms of individuals whose identities are protected being ‘identifiable by reference to the court’s order’ as distinct from identified by name. On that basis, the Trust modified its position such that it agreed the formulation offered by the parents subject to substitution of the word ‘identified’ for ‘named’. Thus ‘the individual – medical, nursing or other healthcare professionals identified in schedule 1’ and setting out the relevant health care teams and hospital within which categories of medical nursing and healthcare professionals caring for Fatima fall. That, it is suggested, enables anyone to identify whether a health professional caring for Fatima falls within a team, and is consistent with the requirement that those protected should be identifiable by reference to the order. In the circumstances of this case, if the injunction is to extend to those looking after Fatima, I agree with that formulation. Furthermore, it meets in my judgment the specificity needed. All cases which lead to applications of the sort brought by the Trust here are unusual, but each comes with its own fact specific circumstances. It may be that in other cases the better course to satisfying the requirement of identifiability will be by naming those caring for a child. Here I am satisfied that it is not.

The Parents’ primary position however remains that there is insufficient evidence of any continuing adverse public interest or commentary to make it necessary for the court to include clinical staff looking after Fatima now but who were not involved in the earlier proceedings. Ms Cheetham draws a distinction between the position now as the court’s involvement draws to an end, and for example the often febrile atmosphere at the outset of proceedings where the protection of clinicians may be something that is very much to the fore, as the Supreme Court acknowledged – see in particular: [2] [98] [203]. Media interest in and reporting of Fatima’s case has markedly diminished. The extent of that protection would, it was suggested in argument, have the unintended consequence of for example, limiting ordinary day to day conversations with parents of other children treated in the same wards. How are the parents to respond to ordinary unremarkable questions like: ‘Nurse X is looking after my son does she look after your daughter?’ or ‘who is Fatima’s consultant and do you like them?’ Whilst the response of the other parties is that the difficulty illustrated by that example is one for which any order made, can make provision, it nonetheless as Ms Cheetham submits, falls with appropriate weight in the balance as I reach a decision.

On behalf of Fatima, Mr Davy KC made the following important points

I am satisfied that in Fatima’s particular circumstances it is necessary and proportionate to make an injunction which includes not only those involved in the earlier proceedings and the second opinion doctors but also those continuing to care for her whilst she remains in hospital. I accept and agree with the position of the Trust and the Guardian and the submissions made on their behalf. For reasons I have already considered above, those caring for Fatima should be identified by reference to particularised teams set out in schedule 1. At the outset of the hearing there had been a measure of agreement between the parties that, were I (in making any injunction in respect of treating clinicians) to adopt the formulation reflected in the version of schedule 1 attached to the draft order then circulated, that might offer clarity. That version in relation to treating clinicians set out six teams and the job titles of those falling within them, but also a named list of those caring for Fatima as at the date of the hearing. There indeed appeared at first to be some attraction to this course, as submissions developed over the course of the hearing however, I became less persuaded that it was likely to be helpful and, to the contrary, increasingly concerned that it had the potential to be unhelpful. For the following three reasons I have concluded the better course is not to include a list of names of those currently treating Fatima alongside the identification by role and team:

None of that prevents the parents (should they not already have it) being given by their legal team the list as at the date of the hearing if they will find that useful. It will however have to be with a clear warning that it is neither a static unchanging list nor the basis on which the order has been made.

In my judgment, notwithstanding the parents’ submissions as to paragraph [120] of the Judgment of the Supreme Court in Abbasi, the more straightforward and appropriate course in this case is to vary section 12(1) (a) (i) of the Administration of Justice to the extent of granting permission to communicate or publish identified information.

At para [5] above I reflected the parents’ wish to ‘tell their story’ and their wish to be confident as to those parts of the proceedings they may discuss and are not subject to any restriction. To be clear, no part of any order I make today is intended to inhibit the parents from talking about their experience, as Fatima’s parents, of the application made by the Trust and the court hearings which followed it. Any order made today will be to protect Fatima and those who look after her so that her care is not at risk (including from interest generated if her parents do decide to tell their story).The information for which the Parents sought variation had been reduced to schedule format by Ms Cheetham KC and her junior and as to this aspect issues between the parties had been very significantly narrowed by the time of the hearing. Subject to some small amendments arising out of submissions I am content to approve that schedule.

The documents from the proceedings which the parents wished to provide (subject to restrictions in conventional form as to use for the purpose provided and preservation of confidentiality) and the entities to which they wished to provide them were however not something about which the parties had reached a similar measure of agreement:

The parents sought permission (subject to certain conditions) to provide ‘copies of any chronologies, indices, position statements, skeleton arguments and written submissions filed in proceedings’ to the following:

The parents strongly contended the documents should be disclosed unredacted in the case of all those at i)-v). In respect of reporters, the point was strongly made that an accredited reporter would, but for the timing of the final hearing, have been entitled to them in that form. So far as the others are concerned in part the significance of the unredacted format submitted Ms Cheetham was that, absent the names of those concerned the documents would not make sense and in part because, to take one example, the GMC were it on receipt to set about any kind of disciplinary action would need to know who were the clinicians concerned. It would in any event, be onerous and unreasonable to expect the parents to ensure that there were appropriate redactions in place.

Ms Scott made detailed submissions so far as those categories at i)- v) above are concerned. She broadly accepted the Parents’ position that there is ambiguity as to whether the disclosure to legal advisers at v) would fall within that which is permitted by PD12G given that the legal actions contemplated arise out of the proceedings but are not ‘in connection with the proceedings’ as would be for instance any appeal. For clarity if that is to be permitted, it would be better for clarity, as an express direction made by this court. Whilst the Trust overall (save in respect of reporters) adopted the position that any documents should be redacted as to those names appearing in the schedule to the injunction, Ms Scott pressed less strongly in this respect as to v) than in relation to i)-iv).

In respect of categories i)-iv) Ms Scott’s submissions, essentially distilled to the following: although protected by strictures as to onward transmission and purpose (and indeed during the lifetime of any injunctions those protections) the wider the dissemination of documents with names and identities, the greater the risk of disclosure, even inadvertently. Just as the anonymised judgment as published, the use of cyphers/initials does not impede the reader’s ability to understand, so too with any documents here. Regulatory bodies such as the GMC are perfectly well able to take a view as to whether disciplinary action is warranted, should the Parents wish to make a report, on the basis of the documents disclosed. If it is, application can be made and granted (and as in other instances) administratively. Ms Scott acknowledged that Ms Cheetham’s submission that it would be onerous and unreasonable for the parents to assume responsibility for redaction of chronologies, indices, position statements, skeleton arguments and written submissions was well made. Having taken instructions on the point, Ms Scott’s submission that any release of those documents in categories i) - v) should be in redacted form, was on the basis that the Trust would bear the cost and take responsibility for any such redaction. It was important not to lose sight of the context within which the Trust made submissions on this aspect of the case which included an intention by the parents’ to respond to invitations from the media which carried with it likely increasing rather than diminishing mainstream and other media interest.

In respect of this aspect I have concluded on balance that in the particular circumstances here documents provided to those falling in categories in [21] i)-v) above, should be in a form redacted so as to be consistent with the injunction made today.

In the time between submissions and hand down of this judgment, I note that Nicklin J has given judgment in Baroness Lawrence and others v Associated Newspapers[2025] EWHC 1716 in which he has given detailed consideration (albeit in a wholly different context at case management) to inter alia the issue of redaction of disclosed documents. Having determined that in this case that in my judgment it would be appropriate for provision of document to those in i) -v) to be in redacted form, I have thought it prudent notwithstanding that is it not a decision which is binding on me to reflect on whether that which emerges from the judgment of Nicklin J notably at [73]- [78] et seq causes me to take any different view. It does not.

I take a different view in relation to those documents which may be released to accredited reporters. On this aspect in addition to submissions from Counsel for each party I had the benefit of brief observations from Mr Parke from the Press Association who was present in court. It seems to me that there is force in the submission that were the proceedings to have been heard after 1^st May 2025 they would fall under the Family Transparency Provisions contained within 1.2(b) and 1.3(b)(ii) of PD12G. By para 6.2 on request a reporter would be entitled to copies (subject to receipt of a transparency order) of those documents under consideration here.

Additionally, as Ms Scott submitted, amplified by Mr Parke’s observations, accredited reporters are well used to receiving and handling material which is subject to reporting restrictions or injunctions as the case made be and service is accompanied by a schedule particularising in very great detail those who are protected. In my judgment so far as vi) above, Reporters, is concerned the documents disclosed should be in unredacted form.

Once again coincidentally in the time between submissions and hand down of judgment, another court had had cause to consider circumstances in which partial variation of s 12 of The Administration of Justice Act 1960 had been permitted so as to allow reporting of certain aspects of proceedings. In re HMP [2025] EWCA Civ 824 the circumstances in which the Court at first instance had partially varied so as to permit reporting were factually very different to those here. I have paused to consider carefully my conclusions on this application in the light of the conclusions reached by the Court of Appeal and in particular the caution at [22] “The open justice principle does not extend to affording third parties access to such information for reasons unconnected with examining the work of the courts and tribunals and the judges who sit in them” and at [25] against the danger of falling into error by drawing too wide a definition of what should be understood by the Family Justice System. I am satisfied here that this case turns on its own facts and an order for partial variation of s 12 AJA 1960 is appropriate.

Finally I return to the questions posed in argument reflected in [11] above. I intend, as indicated during the hearing to require the Trust to give notice, when known of the date when Fatima is to be fully discharged and will invite Counsel to agree a suitable form of words for inclusion in the order.