Melanie Newman is a freelance journalist. Previously a reporter at the Bureau of Investigative Journalism, she has also worked for BBC Newsnight and the Victoria Derbyshire Programme. She writes for the British Medical Journal and is a regular contributor to the Law Society Gazette. Melanie tweets as @Melanie_Newman.

Melanie was the Applicant in the case of Newman v Southampton City Council & Ors [2020] EWHC 2103 (Fam). You can read the full judgment here.

Her application related to Case No: B4/2017/1863

The first instance judgment is here

And Court of Appeal judgment is here

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It’s the stuff of nightmares. Your two year old, who has severe allergies, is gasping for breath at night. Your child has severe sleep apnoea, which causes breathing problems, but you don’t know that yet: it hasn’t been diagnosed. 

You’ve trained as a nurse, but even amongst professionals, severe allergic reactions are hard to diagnose, as they usually cause breathing difficulties which can be confused with other disorders. Your child’s own doctor has just published a paper about how anaphylaxis reactions in children can be confused with acute asthma. 

The same doctor has prescribed an Epi-pen. The advice you were given is to administer it if you suspect an attack as it’s “better to be safe than sorry”.  As one of the country’s foremost experts in allergies, Adam Fox, told the BBC last year in the context of a teenager’s death from an allergic reaction,  “if there is any suspicion that you’re having a severe reaction, just get on and use [your epi-pen] … that’s what they are there for. If you use it when you didn’t really need it, that’s not a problem at all, there are no meaningful side effects to worry about.” 

So you use the pen and take your child to hospital. This happens twice in just over six months. On both occasions doctors decide the Epi-pen was used unnecessarily. For many parents then, that might have been the end of it, given the minimal harm caused.  But you have a poor relationship with your child’s allergy doctor and have previously complained about him to the hospital. You feel the care your daughter is receiving is inadequate compared to that given in her previous hospital. You have also argued with the local authority over support available to you as the single mother of an ill child.

The hospital holds meetings about you under its guidelines for managing Factitious and Induced Illness (FII). This is a form of medical child abuse, previously known as Munchausen’s Syndrome by Proxy, in which a parent exaggerates or causes their child’s illness, leading to unnecessary medical treatment.

There’s something else going on that you’re unaware of. A scandal is emerging at Great Ormond Street concerning over-treatment of children with severe food allergies, along with a related concern that FII have been missed. The Royal College of Paediatrics and Child Health is investigating. The College view is that parents who are “over-anxious” are part of a spectrum of harmful behaviours as well as those who set out to be deliberately deceptive.

Where previously FII and Munchausen’s by Proxy was only considered where the perpetrator used deception, or showed an intent to deceive, the FII label is increasingly used in cases of anxiety, meaning that a much larger pool of parents than previously are falling under suspicion of abuse. 

The hospital and local authority decide to involve the police. You are arrested. Your child is removed. You are released without charge, but your child is not returned. While in foster care her severe sleep apnoea is diagnosed. To your mind this justifies your view that she was not well while she was in your care.

But you are persuaded that confession is the best way to  get her back. You admit that you caused your daughter, or put her at risk of, significant harm because of your actions. You admit you misinterpreted your daughter’s night-time symptoms as an allergic reaction and administered the Epi-pen because you were over-protective, and that this over-protectiveness “took over” from the medical training that should have allowed you to respond more appropriately. You say you can see why the medical professionals were suspicious of you.. 

A year goes by. Your daughter remains in foster care. Internally, you are raging and consumed with anxiety. You do not understand what is happening.  A psychologist, Dr Sharon McKinnon, has never met you but after a very brief observation of a section of a recorded contact session, decides you will require lengthy therapeutic intervention before any reunification with your child can be safely considered. Dr McKinnon has been providing support to the foster carers.

At contact sessions, you notice marks on your daughter. They are small marks but in your mind they are some evidence of harm. You feel your child was removed on the basis of similarly small evidence. You rage against the foster carers. You retract your admission. As a black African woman your theorise that your treatment is due to racism – and say so. The judge views both the retraction and your accusations of racism as further evidence against you and approves an adoption placement order on the basis that you pose a significant risk of physical and emotional harm to your daughter. 

Thanks to your new husband, who owns a property, you are able to raise the £20,000 in legal costs required to have this ruling overturned in the Court of Appeal. It is rare that any parent is able to countenance such an appeal, let alone win it. The stress Is intense.

But you do win. After three years apart, your daughter comes home. Today she is still prescribed EpiPens and has a hospital allergy treatment plan. The most recent medical advice given to you by medical professionals is to use the pen if in doubt.

A potential miscarriage of justice then, mitigated because the mother in the case was able to raise a large sum of money for an appeal. 

It is beyond question that miscarriages of justice have occurred in the criminal justice system, resulting in incarceration of the innocent. Journalistic access to the evidence before the court and in some circumstances, withheld from it, has been VITAL to the identification and exposure of the criminal justice failures that led to these cases (See Jon Robins’ The Crisis in Our Justice System for more on this). Investigative failures, disclosure failures – and failures by the Court of Appeal to accept these failures – are all common themes.

There is no reason to assume the family courts are immune to similar errors with consequences that may be equally, if not more, catastrophic. Many parents would prefer to lose their liberty than have their child permanently removed from them. Yet to date, the family courts have largely remained immune from public scrutiny, even as ever larger numbers of children have been taken into the care of the state – a state that has too often proved to be a wholly inadequate parent. 

In recent years there has been a recognition that this state of affairs may be contributing to a loss of trust in the system. The former president of the Family Division, Sir James Munby, spearheaded an effort to improve transparency of proceedings. More recently, guidance has been issued to help journalists report on family court hearings. However the ability to attend and report on hearings is of little help to freelance journalists such as myself, who in the main only become aware of cases after the publication of a judgment on Bailli. In my view the best way – arguably the only way, given that journalists have no entitlement to court transcripts – for reporters to gain a retrospective understanding of a case, is to view the documents setting out and evidencing the arguments of both sides. 

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My interest in the case above, known as Re M, began when I was working on a story about Southampton Council. I was in touch with an academic who had discovered the rate at which under fives were put up for adoption was higher in Southampton than almost anywhere else in the country. 

I took this information to the BBC’s Today programme, having unearthed the case, to accompany their report; the child in this case was in the exact cohort studied by the academic. In the event, Today did not refer to it, but my interest in it continued.

I had questions about the process by which the threshold required to remove the child into care was reached, let alone for an adoption, and whether an earlier fact-finding hearing should been held.  And I’m not alone. A family barrister friend forwarded me a link to the Court of Appeal judgment after I had already found it, with a notice saying: “Seen this one? Goodness knows how it met threshold in the first place, let alone placement order level.”

To me, the mother’s admissions, detailed in Judge Hess’s ruling giving his reasons for making the placement order, come across as an extraordinary confession of guilt given the apparently minor nature of the harm done. From my knowledge of the Family Courts, parents can find themselves in a double-bind. If they do not admit fault, they can be accused of lacking insight into their failings. If they do admit, the fault becomes the basis of the case against them.

But it was impossible to tell what actually happened based on the published documents and the mother’s account alone. The local authority and medical professionals may well have had good reason for acting as they did. The Court of Appeal judgment refers to a local authority chronology describing “gathering concerns which ultimately led to the FII investigation”, for example – but there is no indication of the facts that underlay those concerns.

After her arrest, experts who assessed the mother concluded this was not a case of FII but of an over-anxious parent, but there is no indication as to how that conclusion was arrived at, or whether these reports were still relied on by the court after the child’s undiagnosed sleep apnoea was identified.

I asked the journalist Louise Tickle to accompany me to court for the final hearing at which M was returned to her mother. The judge at that hearing imposed  reporting restrictions on us, which Louise went on to overturn at the Court of Appeal (see here).

Following that decision, I made an application to the court to view the local authority bundle in the case. It was the only way I could think of to find out what really went on.

I was acutely aware that a fellow journalist, Andrew Norfolk, had been heavily criticised after relying on a mother’s – as it turned out, inaccurate – account of her child’s treatment in foster care (see here and linked posts). In my application I said that I only wanted to view the records, that I would keep their contents confidential, and would seek further permission from the court to publish or share them subsequently, if appropriate.

I hoped a decision might be made at a single hearing. Instead there were five, including a two-day contested hearing in the High Court at which the local authority and CAFCASS instructed QCs to counter my application. I began the case unrepresented but, realizing that I stood no chance against this kind of legal firepower, persuaded a QC friend to work for free.

The judgment was published last week, some 18 months after I submitted my application. Apart from permitting me to see the experts’ reports into the mother and some social work case summaries, Mrs Justice Roberts refused my request. I was not given access to the NHS chronology that had been used to justify the child’s removal, the child’s medical records, or the safeguarding meeting notes which, collectively, should have shed some light on the professional assessment of the mother as posing a serious risk.

In denying me access to records of the child protection case conferences, Judge Roberts said: 

“It is essential that those charged with protecting children should not feel constrained in their efforts by concerns in relation to the confidentiality of their investigations…They involve professional assessments of risk and for good reasons of public policy the courts have afforded a high level of confidentiality to records informing these ongoing risk assessments. I can see nothing in this particular case which would justify any departure from that established principle.”

Similarly, with regards to the experts’ discussions of the case, she said: 

“If experts believed that their deliberations were to be opened to the scrutiny of parties and their legal advisers, they would doubtless be reluctant to make concessions and accept the validity of different opinions. They can, of course, be challenged in cross-examination about the reasons underlying their conclusions and opinions but this is different from requiring them to publish or open to scrutiny the professional discussions which informed those conclusion.”

And in denying me access to the child’s medical records, she stated: 

“In the context of this application, I am satisfied that she has sufficient material about the medical history of both M and her mother. It is either already in the public domain and recorded in the judgments to which I have referred or it is likely on the balance of probabilities to be irrelevant to any decisions which were made in those proceedings. To the extent that those judgments have not recorded the full detail of the medical evidence available in the bundles, I am satisfied that such confidence will have been preserved for a very good reason.”

The judge has provided little reasoned analysis as to how and why one journalist, viewing these documents but unable to report on them or share them without further court permission, would fatally compromise privacy or confidentiality or constrain professional discussions and opinions. She agreed with my opponents that the distinction between viewing under strict conditions preventing publication, and publication itself, was artificial as in her mind I am “seeking disclosure because I wish to write about the case and publish what I write”, although this is not correct: I am seeking disclosure because I may wish to write about the case, depending on what is disclosed.

As the judge concedes, the professionals involved should already be aware that their discussions may be referred to in court hearings at which journalists are entitled to be present – but she says this is “different from requiring them to publish or open to scrutiny the professional discussions which informed those conclusions”. The judge does not, however, say in what way this is different. 

And she does not engage at all with the possibility that a child may benefit from a greater understanding of the facts that led to her long term and, I understand traumatic, removal from her mother, and that these benefits may outweigh the harm to her privacy done by a single journalist viewing her records – with her mother’s consent.

Neither is there an indication how the judge arrived at the decision that, as a journalist, I had sufficient information for my needs, or how she came to the conclusion that any material not recorded in the judgments was “likely on the balance of probabilities to be irrelevant to any decisions made” or kept confidential for a “very good reason”. And I see no reasoning in the judgement to give rise to her assessment that the NHS chronology and medical records were likely to be “irrelevant to any decisions made”.

There is a strong theme running through the judgment that Mrs Justice Roberts feels that the only appropriate route to challenge a legal decision is via the courts and that there is no place for further scrutiny by the press. 

“I have already expressed my view that any potential miscarriage of justice for this family was averted by the decision of the Court of Appeal to set aside the original placement order,” she wrote, skirting over the possibility that a miscarriage of justice may have already occurred in the event that the child was wrongly separated from her mother for an extended period. 

“It is not for journalists to determine the lawfulness of any particular decisions taken by judges or public bodies. That is the function of a judicial system,” she added. 

In a country with a free press, as long as there is evidence, journalists may say whatever they like, including that local authorities have made unlawful decisions and that judges have misapplied the law. 

That freedom has arguably swayed decision-making in many cases in the past: to cite just one,  journalists and a dedicated group of campaigners argued for years that the law of joint enterprise was being wrongly applied by the criminal courts, before the Supreme Court finally agreed. (See the BBC documentary Guilty by Association, as one example, and the Bureau of Investigative Journalism’s work here). After the Supreme Court judgment Labour MP Lucy Powell described the issue in Parliament as “potentially one of the biggest and most widespread miscarriages of justice ever to face our justice system”.

Judges and the courts are not infallible. For trust to be rebuilt, they must show their workings and allow proper journalistic scrutiny. 

Feature pic : Private No Entry by Brad Highham on Flickr – thanks (Creative commons)