There are two matters of interest in this unusual judgment by Mr Justice  Mostyn in respect of a claim for judicial review brought by a teenager against a local authority, originally published on The National Archives as TT v Essex County Council [2023] EWHC 721 (Fam) but replaced as [2023] EWHC 826 (Admin).

First, some quite complex issues about interpreting local authority children’s services’ duties toward homeless 16 and 17 year old young people; second, the judge’s response to a request by the young woman who brought the claim for her anonymity to be preserved although she is now 18. In this blog post, we are focusing on the latter – because of the tensions between the open justice principle and the protective powers of the court to order certain individuals should not be publicly named. We’ll start with a brief outline of TT’s claim for judicial review.

The claim against Essex Council

TT’s case had been taken up by the Coram Children’s Legal Centre who had instructed the barrister in the case. TT claimed that Essex Council had:

  1. refused to accept that she is an “eligible child” as defined by Para 19B(2) of Schedule 2 to the Children Act 1989, and
  2. unlawfully failed to comply with the duties owed to her as an eligible child.
  3. Alternatively, Essex had refused to accept that she is a “relevant child” under s23A(2) of the Act and had unlawfully failed to comply with those duties owed to her, and
  4. Essex followed an unlawful policy that meant accommodation provided under the Essex Young People’s Partnership did not comply with section 20 of the Children Act 1989.

The terminology in England around duties toward young people who have been in care is a bit of a nightmare (Wales has a different system of categorisation). Basically, an ‘eligible child’ is a 16 or 17 year old ‘looked-after’ child who has been in care for a set period. A ‘relevant child’ is a 16 or 17 year old who is not looked after, but had been in care for a set period, i.e. had earlier been ‘eligible’. ‘Care leavers’ is the generic term usually used to cover all these groups, who are entitled to some types of continuing practical and financial support after 18. The dispute here centred on Essex Council denying that TT had ever been ‘looked after’, so they said she was in neither category. 

Was TT in care?

TT was designated a ‘child in need’ from the age of 14; when she was 16 she was offered emergency accommodation at Bernard Brett House by Essex Council because her mother could not care for her. Essex said they had given TT the choice between being accommodated under section 20 Children Act 1989 or what the judge described as ‘non section 20 accommodation’.  Bernard Brett House is not a registered children’s home – it’s a supported living project for vulnerable 16-25 year olds in Colchester. TT is now living at a YMCA hostel. In both these places, she was paying rent by claiming Universal Credit. However, TT’s barrister argued that this had not been a situation where TT had been offered the option of section 20 care and turned it down, and that therefore (according to plenty of cases on this) because TT was a child who needed accommodation, she did have the status of a looked-after child. Although Essex still maintain that TT was never in care, the judge states that they have formally agreed to treat her as being in the category of ‘formerly relevant child’ (formerly, because TT is now 18). The matter had therefore become ‘academic’ in the sense that there was no ongoing dispute about TT getting support as a care leaver, but the judge agreed to hear the case as a matter of public interest.

After lengthy examination of the law and the lawyers’ submissions, the judge concluded that TT had not been looked after under section 20. The details of the facts and the decision on those facts  will be of interest to lawyers and other professionals who work with homeless teenagers. 

Identifying TT as the claimant in the published judgment

Mr Justice Mostyn expressed some surprise that TT, who had turned 18 in March, asked not to be named in the published judicial review judgment.

The starting point in all proceedings is open justice and the identification of parties, unless there is specific legislation or judicial powers the court can use to anonymise a party. Of course children are anonymised in Children Act proceedings under section 97, but although this case was about interpreting that Act, it wasn’t a family court matter. (Interestingly, the judgment was originally posted on The National Archives with a Family Division citation, in error, but this was replaced with a correct citation for the Administrative Court.) 

While TT was 17, Mrs Justice Ellenbogan had undertaken an Article 8 – Artlcle 10 balancing exercise to conclude that TT should be granted anonymity because the proceedings involved sensitive personal information about her and her family background. Mostyn J did not disagree with that earlier decision but because TT had turned 18 a few weeks before this hearing, he assumed that protection should end. He analysed the relevant law in some detail (from para. 74). Consistently with his recent pronouncements in family law, he is clear that anonymity in public court proceedings must be exceptional, and is not happy with the idea of extending this into TT’s adulthood.

I was reminded of the few cases in the criminal courts when a young defendant turns 18 and applies under what is now known as ‘the Venables jurisdiction’  on a human rights basis for their identity to continue to be protected, once they turn 18 and their statutory anonymity falls away. In the case of Adam Choudhary, one of the boys convicted of involvement in the death of Yousef Makki when they were all 17, Mrs Justice Steyn drew a clear distinction between the statutory protection of a child so he ‘did not have to cope with the glare of publicity during the course of a stressful criminal trial’ and not normally requiring such protection once he was 18 (DXB v Associated Newspapers & others [2020] EWHC 134 (QB) 115). While young defendants do not choose to be in court, Mostyn thought TT was there of her own volition:

‘The claimant has appointed herself the champion of a large number of 16- and 17-year-olds living in non-section 20 accommodation in Essex. The claimant asks me to find that the defendant has been practising an unlawful policy of coercing these children into making agreements against section 20 accommodation. I do not find there was any such “policy” although based on my study of the other cases … and of the evidence given by the claimant’s witnesses, I do conclude that sometimes the choices have not been presented as neutrally and impartially as they should have been.’  [para  69]

The judge is therefore short on sympathy for TT’s application to remain anonymous,  although he concedes that he would have imposed a reporting restriction order on details of her family background and some other personal matters.  However, he reluctantly concluded that those restrictions might not work to prevent the possible risks to TT of publicity which ‘tips the balance’ against Article 10. He therefore continued the RRO made by Ellenbogan J.

The case of Yousef Makki was enormously newsworthy and the media were counting the days until  the convicted boys turned 18. It is difficult to imagine the media jumping on the case of TT – even if she were named.  As Mostyn says,

‘I would be surprised if any newspaper or other media outlet considered it sufficiently newsworthy in any report about this case to identify the claimant, let alone to give details about her personal life. The case is about the construction of a highly technical piece of legislation. Underlying it there is, I suppose, a story worth telling about why the defendant has sought to save ratepayers’ money in the way that it has. But that story does not depend for its newsworthiness on identifying the claimant.’ [para 84]

I’m not sure many people who take the time to read this judgment  would select ‘saving ratepayers’ money’ as the most notable element of this case, certainly not from a children’s rights perspective. TT and her legal advisers surely raised a valid question about the Essex Partnership avoiding section 20.  However I agree that media attention is unlikely.  The judgment  was inevitably going up online though, so naming TT might expose her to unwelcome attention, especially if she has an unusual name.  The fact that TT’s name would be found on TNA and BAILII was not specifically mentioned by the judge; he seemed to view any potential risk as being created only by mainstream media interest arising from the publication there.

Time limited anonymity  

This is another interesting point. Mostyn J insists that TT’s anonymity should be time limited – he decided on two years. Indeed, he says anyone’s anonymity should be subject to a time limit.  He was ‘taken aback’ when TT’s barrister asked him why he had limited the order in this way and stated that ‘the starting point should always be that the order has an end-date, with the burden being on the applicant to demonstrate by clear and cogent evidence why the order should last indefinitely.’  {para 88]

I’m not sure that is the usual judicial approach. In other cases, a RRO to protect an individual’s identity remains in place unless and until it is challenged. For example, in a successful application by a young convicted person, RXG v Ministry of Justice [2019] EWHC 2026 (QB), the High Court extended RXG’s anonymity post-18 ‘until further order … the reporting restrictions remain subject to review, in the event of a material change of circumstance’ [para 72].

In the unsuccessful application mentioned above, DXB, Steyn J pointed out that the Venables jurisdiction normally meant lifelong anonymity and that unusually, Choudhary was applying for a time limited order only. Mostyn J notes that Mrs Justice Lieven has recently received approval by the Court of Appeal in making time limited orders – but he did not mention that the CA judgment (Abbassi v Newcastle Hospital Foundation Trust [2023] EWCA Civ 331) goes on to say ‘There will be different considerations affecting protecting the long-term anonymity of family members if their identities are not in the public domain and they seek protection.’ [128] This would appear to relate more to TT than the short term orders Lieven J made about identifying a hospital.

Implications of this case

There are ongoing campaigns to make local authorities house 16 and 17 year olds under section 20 – Just for Kids Law have obtained figures showing there are thousands of children being wrongly excluded from care. However, Mr Justice Mostyn is certain that TT did make a free choice not to go into the care system when she was 16. He is also certain that supported accommodation provided by the Essex partnership is lawful. He is less certain about the anonymity issue, and even says ‘I may be wrong’ in extending this protection for two years. TT had issued her application for judicial review at the beginning of May 2022 when she was 17, so it may not have occurred to anyone that she would become an adult before the judgment. Legal advisers to teenagers will need to think ahead about risks of publicity if proceedings are still ongoing when a litigant turns 18.

Image: Roman wall, Colchester. Thanks to David Hawgood, Wikimedia.

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