Abstract
Publication of information about care proceedings
Tickle v Herefordshire County Council & Ors
High Court Family Division, Lieven J
4 May 2022 [2022] EWHC 1017 (Fam)
Louise Tickle is a journalist specialising in the family justice and care systems and is a member of the Transparency Project, which aims to promote greater understanding of family law. She presented a documentary for BBC Panorama, focusing on four cases in which Herefordshire County Council’s Children’s Services had been severely criticised by the courts. She wanted to include in the programme an interview with a mother who had been party to care proceedings in Herefordshire. She made an application to be allowed to see documents from the case, interview the mother and to listen to recordings of the proceedings.
Section 12 of the Administration of Justice Act 1960 prohibits the publication of information relating to proceedings held in private (which includes proceedings under the Children Act 1989, the Adoption and Children Act 2002 and inherent jurisdiction cases involving children). Herefordshire did not oppose the disclosure of information to Ms Tickle but applied for an order under the inherent jurisdiction to prohibit publication of any information that could lead to the identification of the children (including ages and number in the sibling group) and to prevent the naming of any of the council’s employees involved with the family. They opposed the mother being interviewed on camera unless her identity was concealed.
Herefordshire argued that identifying the current social worker would not be in the best interests of the children and that identifying other employees would exacerbate their existing difficulties in recruiting and retaining social work staff.
The court needed to balance the children’s Article 8 rights to respect for their private and family life and the right of the mother to tell her own story, which is protected by both Article 8 and Article 10, her right to freedom of expression.
Held
It should not be assumed that publicity and identification of the children would be automatically harmful. This was not a case in which there were distressing details about the children. The initial concerns were of domestic abuse between adults and the possibility of fabricated illness. The children remained at home throughout the proceedings and the care orders had been discharged a year after they had been made. The children were all under eight years old, had no access to social media and their immediate network already knew that there had been social work involvement. The mother could be named and interviewed openly, but listed identifying details of the children could not be reported. The children could not be filmed in a way that allowed them to be identified and could not speak on camera.
Employees of the council are publicly accountable and, except in cases where they could be subject to significant risks (as in some medical cases), the principles of open justice require a high level of justification before the court can order anonymisation. There was no such justification in this case and the employees could be named.
Griffiths v Tickle & Ors (Disclosure by Counsel for Appellant and Application by First Respondent)
Court of Appeal (Civil Division), King LJJ and Warby
5 April 2022 [2022] EWCA Civ 465
In December 2021, the Court of Appeal dismissed an appeal by a father against an order allowing the publication of a judgement in private law proceedings that included his name (Griffiths v Tickle & Ors [2021] EWCA Civ 1882). In the course of those proceedings, counsel for the father had discussed the case with a family friend who was a solicitor and had sent her a copy of his skeleton argument for onward transmission to the Association of Lawyers for Children (ALC).
This hearing addressed this breach of confidentiality and allowed Ms Tickle’s application for disclosure of a Note prepared by counsel and his subsequent witness statement.
Counsel accepted that he had acted in error in disclosing the documents. He had acted in good faith, approaching a family solicitor and seeking advice on representation for the child in the case. The disclosure had been made in the expectation of confidentiality to lawyers experienced in representing the interests of children. He had believed that such disclosure was being made in the interests of justice and was allowed within the rules. The ALC realised on reading the papers that they should not have been disclosed and deleted them, informing the parties that they had done so.
The court decided that although they considered that a contempt of court may have been committed, initiating proceedings against counsel would be disproportionate in the circumstances. There had been limited disclosure of material to a limited audience of professionals, in good faith but without consideration of the Administration of Justice Act 1960. Counsel would have to bear the costs of the proceedings and the judgement would be made public; in all the circumstances this would be a proportionate response to a breach of confidentiality and no further action would be taken.
Comment
These two cases illustrate that the courts are beginning to embrace openness and transparency. The process is being driven forward by the Transparency Project and journalists like Ms Tickle, and the principle of open justice is supported by the President of the Family Division. The courts are able to find ways of allowing the reporting of children’s cases without identifying the children involved and are increasingly willing to do so. Each case will be dependent on its specific facts and the court will need to carefully balance the Article 8 and Article 10 rights involved, without giving precedence to either. The children’s interests in a disclosure case are not paramount but will be a major factor in the decision-making.
It is, however, vital that the court is fully engaged in any decision-making. Although the court in Griffiths did not pursue contempt of court proceedings, it was made very clear that the disclosure was not being treated as ‘trivial or technical’ and that the court should be consulted if there was any doubt about whether disclosure was permitted by the rules.
Adoption agency decision-maker: Breaches of regulations
Somerset County Council v NHS Somerset Clinical Commissioning Group & Ors
Family Court, McFarlane P
13 April 2022 [2022] EWFC 31
Somerset County Council has been identified as making decisions that a child should be placed for adoption without having complied fully with the Adoption Agencies Regulations 2005 in relation to the medical information contained in the Child’s Permanence Report. The breaches identified were of Regulation 15 – the requirement to have the child examined and a health report prepared, unless the agency medical advisor advised that this was unnecessary – and of Regulation 17 – the requirement to include in the child’s permanence report a summary of the child’s health, health history and future health needs prepared by the agency medical advisor.
Roberts J gave judgement in November 2021 [2021] EWHC 3004 (Fam) in relation to 10 children who were subject to placement orders made after an agency decision-maker had decided that adoption was in their best interests.i
In each case, Somerset had been granted declarations under Part 18 of the Family Procedure Rules 2010 that the placement orders were validly made. Somerset made further applications in respect of children who had been placed for adoption but not yet adopted with the expectation that children who had been adopted would be considered at a later date. This represented hundreds of children in Somerset, and after the publication of the November judgement it became apparent that many more local authorities had obtained placement orders in similar circumstances. Hundreds of adoptive placements were put on hold due to doubts about the validity of placement orders. The President of the Family Division transferred the case to himself in order to give general guidance.
Held
Placement orders that had been made remained valid until revoked or appealed. There was no requirement for further validation by declaration and, in any event, Part 18 is simply a procedural gateway to applications that the court already has jurisdiction to consider; it is a ‘wholly inappropriate’ procedural vehicle. The applications for declarations would be dismissed.
The President found that it was highly unlikely that an application to revoke a placement order would be justified solely on the grounds that technical requirements of the Regulations had been breached in relation to medical information. If a party is concerned that a placement order is invalid, they should apply for leave to appeal the order out of time. He could not, however, imagine that there would be any cases where a health issue was so significant that an appeal could be justified without that information having been before the court, even if not in the form required by the Regulations.
The President emphasised that his decision did not allow local authorities to ignore the requirements of the Regulations and pointed out that courts would be scrutinising applications for placement orders more closely in future. Local authorities must review their procedures to ensure compliance with the Regulations. Where applications for placement orders are pending and a breach has been identified, the decision that a child should be placed for adoption should be reconsidered before an application is issued. If an application has been made, the court should be informed of the breach and steps taken to remedy the situation. Where a final hearing is imminent, the judge will need to give directions to ensure that there is no delay for the child, bearing in mind the welfare of the child and the need to provide a fair trial. If a placement order has been made, it will remain valid unless revoked or set aside on appeal. The local authority will need to ensure that the child’s permanence report is updated to comply with the Regulations before a child is matched with a prospective adopter or an adoption order made.
Note
i. Reported in the Legal Notes in Volume 46, Issue 1 (March 2022) of Adoption & Fostering.