‘Family judge keeps press in the dark about “indefensible” case’

This summer, two judgments were published from Newport Family Court that related to an application by a local authority (un-named) to withdraw care proceedings it had issued  back in April 2023. The child subject to the application had been removed from his grandparents’ care in August 2022 in what the judge described as distressing circumstances. In February 2024, the local authority (LA) applied to withdraw their care application and Peter (not his real name) was returned home. He had been away from his lifelong carers for 17 months, a third of his lifetime. The judgments by HHJ Jonathan Holmes are called Re C (A Child) (Care Proceedings – Withdrawal) [2024] EWFC 227 (B) and Re C (A Child) (Care Proceedings – Publication of Judgment) [2024] EWFC 228 (B); the second one is about whether the first one would be published or not.

In his first published judgment, HHJ Holmes had criticised the LA and the police force involved (also un named) in very strong terms.  The details of the poor – and at times unlawful – practice by the LA and the police are set out at length in paragraphs 48-213 of the judgment and can’t be easily summarised. In the second judgment, the judge decided the first judgment about what had happened to the family should be published, in the public interest.  

The grandparents had supported publication but both the LA and the police had argued against the judge sending his judgment to The National Archives (TNA) –  if he did publish, they wanted to be anonymised. The grandparents’ lawyers put forward arguments on their behalf for publication and for the LA and the police force to be named. The judge came down on the side of publication, but with the names of the LA and the police force redacted. However, when the judgments emerged on TNA, this unusual anonymisation aroused interest and an application was made by Louise Tickle and Tortoise Media to lift those restrictions. Their application failed – the judge did not change his mind. The new decision is Tortoise Media v A Local Authority in Wales & Ors [2024] EWFC 306 and a comment piece by Louise, including an interview with the grandparents is here. I’ve borrowed the headline to that, above.

Legal blogging

I went to court as a legal blogger to observe the hearing of the Tortoise application, although I didn’t know if the judge would allow any reporting. As soon as I decided to go, I tried to give Newport Family Court a decent amount of time to notify the judge and the parties’ lawyers that I’d be there, in case anyone wanted to object. However, at virtually the last minute, someone from the court emailed me to say I wasn’t entitled to attend because Newport isn’t part of the Reporting Pilot! 

Legal bloggers have been entitled to attend care proceedings since 2018, so I politely confirmed that I would be there. The Reporting Pilot was irrelevant. I felt quite sorry for the person who’d apparently spent their day trying to sort this out and receiving the wrong advice. It’s worrying though that HMCTS seem to have forgotten that reporters can attend almost all types of family court hearing.  However, the court staff at Newport were very friendly when I arrived. As can be seen from the image above, efforts have been made to make the court welcoming to families. The barristers for the local authority were expecting me and were clear they weren’t going to object. No one spoke to me on behalf of the police or Cafcass but they didn’t object when the judge explained I was there.

Some observations on this case

This application was about the balancing exercise that a judge carries out when a party is arguing that a child is at risk of harm through potential jigsaw identification (Article 8 privacy rights) and another party is arguing Article 10 interests in freedom of expression.

As can be seen from the published judgment, Louise (a journalist and not legally trained) was making her own submissions. The local authority had gone over the top (in my view) by instructing an eminent KC and a highly experienced  barrister as her ‘junior’ in a hearing that had a tangential impact on the child. Personally, I think their arguments could have been sufficiently put by the local authority’s in-house lawyers, and I hope the expense is being scrutinised internally at least, although local council tax payers are, as Louise puts it, ‘in the dark’ regarding accountability. The police force and the Cafcass guardian each had a barrister. The grandparents both attended but they didn’t have a lawyer; they had been fully represented for the care proceedings but their legal aid had stopped when the case finished. The grandparents hadn’t even received the relevant court papers. As can be seen in  the judgment [para 5] and Louise’s piece, their views were clear: they wanted the LA and police identified.

As can be seen in the judgment, the LA, the police, and the Cafcass guardian argued that there was a risk of harm to Peter if he could be identified as the child who’d been subject to the actions that had been so severely criticised by the judge. On the other hand, the grandparents, whose care for Peter is now acknowledged by everyone as being blameless and who know him best, didn’t think there was such a risk. Louise and Tortoise were arguing on behalf of the media and the public that freedom of expression and information outweighed Peter’s privacy rights as interpreted by the three agencies.

Although the judge did not accede to the application to identify the LA and the police force, he did lift the standard section 12 reporting restrictions to allow Tortoise to publish Louise’s account of her experience and interview the grandparents, while of course retaining Peter’s anonymity.  I decided not to complicate matters on the day by asking the judge to allow me to report as well. I could apply subsequently if I thought I had anything important to add that might amount to sharing information not already in the public domain.

The judgment shows that HHJ Holmes did take into account the fact that no one had presented arguments on behalf of the media at the hearings in May. He notes that the media had not been notified of the hearings back in April and May, although I would think that’s normal. He also acknowledged that Louise had contributed the valuable viewpoint of ‘the independent press’.

However, the judge concluded:

I said in my publication judgment that the decision to publish at all was a finely balanced decision largely due to the risks of jigsaw identification. I was satisfied that the public interest did require publication but that was caveated on the basis of all measures being taken to protect the anonymity of this child and avoid jigsaw identification. Anonymisation of the local authority and the police was one the measures I felt necessary to meet this objective. As meritorious and seemingly compelling the arguments of Ms Tickle may appear they were to a very large extent matters that I had in mind when originally balancing the respective Article 8 and Article 10 rights. Ms Tickle has undoubtedly elucidated the matters in much greater detail and with the benefit of the unique perspective of the independent press but I am not satisfied that balance is such that it tips in favour of naming the local authority or the police. The almost inevitable local and perhaps national press interest that could potentially follow focused on the relevant local authority and police would significantly increase the prospect of jigsaw identification and lead to the harm that is feared of by the Guardian. Fears that I share.  [para 56].

Ironically, the guardian and the judge were mindful of the potential harm for Peter in the context of ‘all he had gone through’, although that previous harm had been at the hands of the LA and police who were now trying to say they wanted him protected from identification.

I guess it’s a big ask to persuade a judge to look again at what he decided the first time round, so I’m not greatly surprised by this conclusion, especially as the LA’s lawyers this time largely relied on the fact that the grandparents’ lawyers in the earlier proceedings had already put forward strong arguments for publication that the judge had taken into account when conducting the required Article 8 – Article 10 balancing exercise.

What would be achieved by identifying the LA and the police in this case?

As far as I’m aware, there hasn’t been any local media coverage of this case. One might think that doesn’t really matter, because the judge has accepted that the LA is taking his criticisms seriously:

The local authority set out that it regrets the failings which were present in this case and that it accepts the criticisms of its processes made by the Court in the substantive judgment. They maintain that they are actively reviewing the decisions made in this case and that there is a strong commitment to ensure that lessons are learned so as to ensure there is no repetition of the errors made in the case. [para 30]

And with regard to the police, according to their barrister:

significant oversight has been given to the judgment with the personal involvement of the Deputy Chief Constable assessing lessons learned and the development of processes to meet such demands and risks for the future. [para 33]

However, as Louise and Tortoise argued:

…  judgments like that are scarce to journalists, Councillors, MPs and campaigners… the use of the judgment is limited if the exact local authority and police are not named and that there are a huge number of important functions that cannot be met if the state actors are not named…without naming them there is no way to hold the local authority or police to account – no way to check that they have instigated the changes as they said they would… the failings of the local authority should be known to the Care Inspectorate Wales and to the Senedd and Councillors so that attention is drawn to it… the failings of the police should be known to the Police inspectorate and the Government…the court has no power to check change has been instigated or to hold to account but the media can and does do that.

….  there is huge public interest in matters like this – that there is nothing like voters knowing of failings and agitating for change or Grandparents publicly but anonymously being able to say about failings and the impact of such failings upon them and the child. … this case demonstrates extensive failings over an extended period of time…[there may be] other families who have suffered the same or similar failings in the local authority or police force area and it is only through naming that such cases could come to light. [paras 22-25]

It’s not surprising that Cafcass take a cautious approach to publicity, nor that the LA and police then cite that caution in their claims for anonymity.  As the barrister for the child and the guardian explicitly said, the LA and the police had self-serving arguments; the guardian didn’t.

The judge had considered current guidance on publication and redaction which states that normally a public body would be named, although front-line social workers and officers would not. Here, he had to depart from that position because he found there was a risk of Peter being identified if the public bodies were. The mainstream media therefore don’t see his judgment as newsworthy and the outcome is that his criticisms have had a limited effect.  

Image: Waiting room at Newport Family Court – from HMCTS on X/Twitter 31 October 2024

and finally

We have a small favour to ask!

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