A Local Authority v A Mother & Ors

This judgment concerns the terms of a Transparency Order in care proceedings. The substantive proceedings involve an application for a care order by a Local Authority, in which it is alleged a young child was subjected to fabricated or induced illness (FII) whilst in hospital. The representatives before me are Ms Williams on behalf of the Sunday Times; Mr Date and Ms Thom, lead and junior Counsel on behalf of the local authority; Mr Lamb KC and Ms Vindis, lead and junior Counsel on behalf of the mother; Ms Brown KC and Mr Norman, lead and junior Counsel on behalf of the father; Mr Jones KC and Mr Marks, lead and junior Counsel on behalf of the child through their guardian; and Mr Wallace, Counsel, on behalf of the Trust.

As I am going to permit the Trust to be named, which is the issue in the case before me, I will refer to Great Ormond Street Hospital for Children NHS Foundation Trust as “the Trust” throughout the judgment.

The Sunday Times have applied for a Transparency Order in accordance with the procedure now set out in PD12R. There are only two issues which are not agreed, one is whether the Trust should be named, and the other is whether one form of the treatment regime for the child can be referred to, namely the use of medical lines in their treatment. The position of the parties is that the mother, the father and the Children’s Guardian support the application, and agree that the Trust should be named. The Local Authority and the Trust both argue that the Trust should not be named.

I will give a very brief background to the application. A Sunday Times reporter, Ms Dugan, has already published three articles about what is suggested to be increasing allegations of fabricated or induced illness against parents in hospitals in England and the impact of those allegations on the families. She applied for a Transparency Order as part of her research and reporting on this topic. It is set out in her witness statement that the Sunday Times argues that there is a high level of legitimate public interest in reporting of this nature.

The law in this field is now very well travelled. I do not intend to set it out very extensively. There are two operative statutory provisions which restrict reporting, firstly Section 12 of the Administration of Justice Act 1960:

“s12(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say—

(a)where the proceedings—

(i)relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;

(ii)are brought under the Children Act 1989 [F2 or the Adoption and Children Act 2002 ]; or

(iii)otherwise relate wholly or mainly to the maintenance or upbringing of a minor;

s12(2)…. the publication of the text or a summary of the whole or part of an order made by a court sitting in private shall not of itself be contempt of court except where the court (having power to do so) expressly prohibits the publication.

S12(4) Nothing in this section shall be construed as implying that any publication is punishable as contempt of court which would not be so punishable apart from this section [F6(and in particular where the publication is not so punishable by reason of being authorised by rules of court)].”

There is then Section 97(2) of The Children Act 1989:

“S97(2) CA 1989,

(2)

No person shall publish to the public at large or any section of the public any material which is intended, or likely, to identify—

(a)

any child as being involved in any proceedings before the High Court or the family court in which any power under this Act or the Adoption and Children Act 2002 may be exercised by the court with respect to that or any other child; or

(b)

an address or school as being that of a child involved in any such proceedings.”

As is well known and referred to in a number of recent cases, efforts have been made in the family justice system to increase transparency in recent years. Those efforts reached some fruition in the adoption and coming into force on 27 January 2025 of Practice Direction 12R, which in very broad terms creates a presumption in favour of reporting by journalists as long as anonymity of the child is preserved. It has a template order attached, although it is important to be clear that the template can always be amended by the Judge depending on the facts of that case.

At the heart of all cases is a balance that needs to be struck between the various Convention rights, including specifically Article 6, the right to a fair trial and open justice, Article 8, the right to respect for private and family life, home and correspondence, and Article 10, the right to freedom of expression including press freedom.

In Re S [2005] 1 AC 593, the House of Lords made it clear that it is for the judge to do that balancing exercise.

In the recent decision of Abbasi v Newcastle Upon Tyne Hospitals NHS Foundation Trust[2025] UKSC 15 the Supreme Court set out the importance of undertaking a structured approach. I refer only to two paragraphs. Paragraph 128 states:

“The proper application of the Convention requires a more structured approach than the concept of “balancing” rights might suggest. In assessing whether there has been a breach of article 10 (or, mutatis mutandis, a breach of article 8), the court begins by asking whether there was an interference prescribed by the law. The next question is whether it pursued a legitimate aim, ie an aim which can be justified with reference to one or more of the matters mentioned in article 10(2) (or article 8(2), as the case may be). The remaining question is whether the interference was necessary in a democratic society. It is at that stage that the court may be required to strike a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other: Axel Springer AG v Germany (2012) 55 EHRR 6, para 84”.

Then Paragraph 182, at sub-paragraph 16, states:

“In answering the last of those questions in relation to article 10, the need for any restriction of freedom of expression must be established convincingly. It must be justified by a pressing social need, and must be proportionate to the legitimate aim pursued. This consideration applies with particular force to preventive restraints on publication, and is reflected in section 12(3) and (4) of the Human Rights Act”.

I note at this point that in this case the first two stages of the structured approach in Abassi are relatively straightforward – there is an interference prescribed by law by the statutory provisions that I have referred to, and that interference is in the pursuit of a legitimate aim (the protection of the child and their anonymity). So, this case moves straight to the third stage, the balancing exercise.

One other case which I refer to is the case of Re HMP [2025] EWCA Civ 824 which emphasised the limits of open justice, and in particular the principle applied to transparency of justice systems specifically.

Paragraph 25 says:

“The central error into which the judge fell was to define the (family) justice system as encompassing not only the work of the courts but also (independently of the courts) the operations of local authorities and other state agencies working with children, and then to apply the principles identified in Dring to the entire (family) justice system as so defined”.

Paragraph 26 says:

“That is not what Dring is about. The application of open justice principles is confined to the system of justice in the narrow sense. Disclosure for one of the purposes identified in Dring may incidentally facilitate scrutiny of decision-making by local authorities and other public bodies. But enabling such scrutiny is not itself a purpose which requires or justifies disclosure under the open justice principle”.

Turning to the submissions, Ms Williams on behalf of the Sunday Times submitted that there is a strong public interest in Ms Dugan being able to report the name of the Trust because of the subject matter Ms Dugan wishes to report on. She has already published three articles about FII, specifically setting out the concerns about the Guidelines produced in 2021 by the Royal College of Paediatrics and Child Health (RCPCH) and referring in those articles to the allegedly increased number of FII allegations made by hospitals against parents. She refers to concerns raised by some professionals about the criteria adopted in the guidelines and the approach the Court has taken. She has also referred to the impact on parents where allegations are made and then care proceedings issued, including concerns that children may have restrictions placed on their contact with their parents. I believe she has also referred to the length of time determining cases can take, and the impact on some parents.

I make absolutely clear that I make no comment on and express no view about the validity or otherwise of the concerns raised by Ms Dugan, whether in this case specifically or more generally. However, I do accept that the issue is plainly one of a legitimate public interest, not just in the guidelines, but how the family court tests the allegations made, and about how the Guidelines are applied by the family court in FII cases.

Secondly, Ms Williams says there is a public interest in being able to name this Trust, in broad terms due to the need for the scrutiny of public bodies, and very specifically here because some of the Trust’s clinicians were involved in the drafting of the Guidelines. She therefore relies on the link between this Trust, the general issue of FII and the Guidelines. Further given the involvement in the creation of the Guidelines, there is public interest in how the Guidelines are implemented by the GOSH Trust in particular.

I note that in terms of the allegations in this case, what Ms Dugan would wish to report on, I she is concerned about the impact of the court’s decision to severely limit contact between the parents and other members of the wider family, and the child in question, in the period before a final decision in the court proceedings can be made. There is therefore a clear nexus between the reporting that is undertaken and the decision making and workings of the court.

Turning then to Ms Williams’ submissions, countering the arguments against naming the Trust, Ms Williams rightly starts with the risk of the child being identified. Section 97(2) Children Act 1989 makes it clear that publication should not be allowed which is likely to identify the child. Ms Williams accepts that if the Trust is named, many if not most readers will identify or assume that it is a child being treated at Great Ormond Street Hospital, although I note that is by no means inevitable given the close relationship between the Trust and many other hospitals and facilities in the south of the country.

Ms Williams says nothing in the reporting allowed under the Transparency Order would link this particular child to the reporting, certainly for general readers of the reporting. Under the Transparency Order made in these terms any identifying features could be excluded from reporting. The parties have agreed that there shall be no details in terms of the child’s medical condition or treatment save to report that the child has a serious life limiting condition and requires ongoing treatment in hospital.

There is a subsidiary argument as to whether words treatment “including via lines” should be included. I will come back to this issue.

Ms Wiliams accepts it is possible that some parents and carers who have children in the hospital, and indeed healthcare professionals, will be able to identify the child or may guess the child’s identity. But she submits that even if it is possible for some people to identify the child, that would not justify interreference with Article 10. She referred to what Munby LJ, in Re B [2004] EWHC 411 said at para 126:

“There is of course the risk that identification of the local authority will make it easier for those who are already in the know, or for those who are part of B’s close family, domestic or social circle, to realise that something being published is in fact about her, rather than about some other child. But that is not of itself, nor is it in the particular circumstances of this case, a sufficient reason to keep the identity of the local authority a secret. I repeat what I said in Re Roddy at para [40]:

There is also, of course, the reality which has to be faced that those who are within X’s “inner circle” will recognise that the story is about him, even if he is not named or otherwise directly identified. As Butler–Sloss LJ (as she was then) said in In re M and N (Minors) (Wardship: Publication of Information) [1990] Fam 211 at pp 225, 226:

“unless there is a total ban … someone somewhere may put the story to the person. That seems to me to be inevitable … to those who know the facts any description, for instance from this judgment, will lead to identification.”

But as Neill LJ said in In re W (A Minor) (Wardship: Restrictions on Publication) [1992] 1 WLR 100 at p 103:

“It is to be anticipated that in almost every case the public interest in favour of publication can be satisfied without any identification of the ward to persons other than those who already know the facts. It seems to me, however, that the risk of some wider identification may have to be accepted on occasions if the story is to be told in a manner which will engage the interest of the general public.””

Ms Williams submits that paragraph 15(g) of the proposed order would apply to a very large number of children who are in hospital or are being treated as outpatients or have an association with the Trust, given the scale of Great Ormond Street Hospital and the very large number of children who pass through its doors on a regular basis.

The second argument against naming the Trust which Ms Williams refers to is the possibility raised of the article leading to demonstrations outside Great Ormond Street Hospital. Ms Williams submits that this is a very speculative concern, and there is no reason to believe there will be significant demonstrations.

The third reason is that the Trust may well become interveners, and there is some suggestion as such that the issue of identification should be considered later. I note at this point, that there is a slight possible confusion in the draft template order as under paragraph 13 of the order, it says that the name of any person that is a party to or intervening in proceedings should not as a general rule be published. However, paragraph 15 of the template order indicates that as a general rule CAFCASS, the Local Authority, or any NHS trust could have its name published. As was pointed out by a number of the parties, a “person” referred to does not distinguish a natural person and a legal person. In my view, it is reasonably clear that the person who cannot be named as an intervenor is intended to be a natural person. As is often the case in care proceedings, an intervener is a person against whom allegations are made, whereas a corporate person in paragraph 15 can be named. I will draw to the attention of the President of the Family Division’s office that there may be a need to slightly amend the template order.

The fourth argument against naming the Trust that Ms Williams seeks to rebut is that based on the judgment inRe HMP [2025] EWCA Civ 824 that I referred to above, and - the potential argument that the interest of the Sunday Times is in the operation of Great Ormond Street Hospital rather than the family justice system. I have referred to this above. Ms Williams says it is clear from the reporting and Ms Dugan’s witness statement that one aspect that is to be reported is the role of the court in care proceedings where the Local Authority and hospital are alleging fabricated or induced illness. So, the impact of the family court’s operation is central to Ms Dugan’s submissions.

The final argument is the potential impact on any police investigation. My understanding is that there is an ongoing police investigation. However, at the last hearing Mrs Justice Arbuthnot adjourned for the Police to be given notice of the application and gave them the opportunity to appear at today’s hearing or make submissions if they opposed the Trust being named or they opposed the making of the draft order. They have not sought to attend or put in written submissions.

Mr Date, for the Local Authority, relies on five points against the naming of the Trust. They are in essence the points Ms Wiliams dealt with. First, if the Trust is named, an assumption will be made about the child being treated at GOSH. However, hospitals as a general rule should not be named.

Mr Date submits that it is not in the best interests of the child for the hospital to be identified as that public knowledge could impact on the working relationship between the parents and the hospital. I accept, as do the parties, that once the Trust is named, there will be assumptions made by the readers about where the child is being treated. However, in terms of the impact on the working relationship, the allegations have been made by the hospital, and the parents are fully aware of those allegations. The harm to the relationship between the parents and the health care professionals, which is inevitable in these kinds of proceedings, will have already taken place. The fact of the reporting is unlikely in my view to have much if any additional impact on that relationship. It is possible that some of the professionals may feel criticised by the parents, but it is highly likely that the working relationship is already very strained. In that regard any additional harm is not sufficiently great to be a critical factor in the balance.

Secondly, Mr Date submits that there is a risk of jigsaw identification here, and that is why, in the template Transparency Order, hospitals should not generally be named.

Thirdly, he says the Trust may become an intervener, and the question is whether it should be dealt with at that stage.

Fourthly, Mr Date points to the case of Re HMP and says that what is sought goes beyond the issues covered by open justice in the family justice system.

Fifthly, he refers to the ongoing criminal investigation.

Mr Wallace on behalf of the Trust supported Mr Date’s submissions, and additionally referred to risk of demonstrations, which could impact on the workings of the Trust and the hospital. He also specifically refers to jigsaw identification amongst people already involved at the hospital.

Importantly, Mr Jones KC for the Children’s Guardian supported the Sunday Times’ application. At the end of submissions, I permitted Mr Jones to take updating instructions from the Children’s Guardian. It was clear from Mr Jones’s submissions that the Guardian had very carefully considered the Article 8 and Article 10 balance, and the impact on the child. Mr Jones submitted that given the large number of operations and seriously ill children within the hospital, there is a low risk of jigsaw identification.

It was accepted on behalf of the child that it was important for the press to name the Trust, particularly because of the case law that refers to the importance of a “name” both for the nature of the reporting and the impact on a case. In terms of the impact on the child, it was submitted that currently the child is too young to have any understanding of the proceedings. But and this concern is raised in the case law, even if in later years the child may become aware of reporting and wider events, he submits, in my view correctly, that the child will have to be told, in the fullness of time, something about what happened in this case. In particular they will have to be told why they had limited access to their parents, and whatever may be the outcome in the substantive proceedings. Therefore, the knowledge imparted by any reporting will in some form need to be given to the child at some stage in the future. The fact of reporting is therefore not in itself against the best interests of the child.

Turning to my conclusions, this is plainly a case of an Article 8 and an Article10 balance. The Sunday Times have a right to report under Article 10 and their right to freedom of expression. The parents have a right to tell their story, whether under Article 8 or 10. On the other side of the balance, the issue is the scope of the restrictions in Article 8(2) and 10(2). The issue is the child’s right to privacy. It is therefore very important in my view, although not determinative, that the Child’s Guardian supports the Sunday Times’ application.

Turning to the specific factors, first of all there is a public interest in transparency and naming the Trust. I accept on the facts of this case a weighty factor is the genuine public interest in reporting fabricated and induced illness and how it is dealt with. There is public interest in the Guidelines; in whether there has been an increase in FII cases; and in how FII cases are dealt with and considered by the courts, together with the impact that has on parents.

Further, as to the naming of the Trust, there is legitimate interest in the role of Great Ormond Street Hospital because of their involvement in drawing up of the Guidelines through their clinicians and how it is applied by the Trust, which deals with so many very sick children. In my view there is a great deal of weight on the Article 10 side of the balance.

In terms of the factors against naming the Trust and the Article 8 rights of the child, in any case the court will be concerned about jigsaw identification. I accept I can never say there is no risk of identification, however here that risk is limited. There is nothing in the public domain to link this child to the reporting the Sunday Times intends to do. I accept the template order says generally the hospital is not to be named. But, certainly on the facts of this case, and I make clear that I am not making general point beyond the facts of this case, it is relevant that Great Ormond Street Hospital is a very large children’s hospital. Within the terms of paragraph 15(g) of the draft order, there are a very large number of children who fall within the cohort set out there. So, on the facts of this case, jigsaw identification, by having identified the Trust, poses a very limited risk.

As said above, Ms Dugan wishes to be able to say this child is treated “via lines” and that this is an ongoing treatment. Although I have no evidence before me, it is well within judicial knowledge that a very high proportion of seriously ill children being treated in hospital will have some treatment via lines, whether for feeding, pain relief, antibiotics or otherwise and so I do not think reference to lines increases the risk of identification.

In my view, the general reader, although being able to identify Great Ormond Street Hospital, is very unlikely to identify this child. I do accept people closely associated such as parents, carers or professionals may be able to identify the child, or speculate which child is referred to. But, as is clear from Mr Justice Munby’s judgment in Re B, the reality is in very many cases that there is a cohort of people, whether friends, parents at the school gate or in the local community, people in the same ward, who will know or guess who the child in the report is, but that in itself is not a ground to refuse the order sought. There is necessarily a judgement to be made on the facts of the individual case.

In terms of the child being able to identify themself when they are older, I agree with Mr Jones that at an age appropriate time the child will need to be told something about what has happened, so I do not consider that on the facts of this case that weighs against identification of the Trust.

The next factor is the role of the Trust as a potential intervener. That is a matter of case management for Mrs Justice Arbuthnot, but there is no reason to delay this decision. Indeed, if the Trust is joined as an intervener, it is likely to increase the legitimate public interest in naming it, not decrease it.

Next is the issue of demonstrations. As Ms Williams said this is highly speculative. The issue in this case, and cases of fabricated and induced illness, are very different from the tragic cases of young children being, or not being, allowed to die. In those cases, demonstrations and targeting of professionals can have a real impact on the working of a hospital. Although it is possible that there is some form of demonstration here, no group or campaign has been brought to my attention, and I think it is very unlikely to have a significant impact on the working of the hospital.

Next is the issue of whether the reporting goes to the role of the court and whether Re HMP applies. It is clear from Ms Dugan’s witness statement and the submissions made on her behalf that much of the reporting is about the approach to alleged FII cases, both by professionals and in the courts, and about the court’s role in FII cases. Therefore, this case falls within the principles in Dring, concerning the importance of open justice, rather than within principles of Re HMP.

As far as the question of the police investigation is concerned, the police were given the opportunity to attend and have not done so. Impact on a police investigation is a matter the court has to consider of its volition, and the court would always wish to ensure that it did not interfere with such an investigation. But in this case any such investigation appears to be at an early stage with no charges having been brought. More fundamentally naming the Trust does not interfere with the police investigation or give any information to the parents that they are not already aware of.

Taking all those matters into consideration, I conclude that the Trust can be named and reference can be made to treatment via lines.