Last week, we wrote on a family court judgment about children that had been published on TNA and BAILII naming an individual party, which we said almost never happened. That’s because of the strict privacy and anonymity rules intended to protect children who are subject to proceedings. In that case, A v B & Ors [2023] EWFC 333, the judge, HHJ Furness KC in Cardiff Family Court, had decided to identify the applicant, Robert Charles Albon aka ‘Joe Donor’, who posed a potential risk to other women and children.
Hot on the heels of that judgment emerging, we’ve just found another ‘recent addition’ on BAILII where a family court judge has named an individual adult who may pose a risk to families. The circumstances of this case are completely different – the named individual was employed by the parents to care for their children but was found by the judge to have inflicted injuries on them.
The judgment is reported as Re XY Twins Inflicted Injury (Naming Perpetrator) [2024] EWFC 414 (B) on BAILII and TNA. The person concerned, Emily Waters, had been working as a maternity nurse when the children were injured in October 2023. They were five week old twins who suffered several limb and rib fractures. Fortunately, they both recovered and went on to flourish in their parents’ care. The parents had had to endure not only the distress of their children being harmed but the trial where they were under suspicion themselves because Ms Waters denied responsibility. In a lengthy fact- finding judgment in July 2024, including a considerable amount of expert evidence, HHJ Judith Rowe KC found that Emily Waters had caused the injuries.
Both the fact-finding judgment, Re Twins XY (Inflicted Injury) [2024] EWFC 413 (B) and the judgment about publication were sent to TNA just this month, February 2025. Ms Waters’ name has been inserted in the earlier judgment for publication.
It appears that a ‘maternity nurse’ is like a private nanny who may have nursing qualifications, although from what we can see here, doesn’t have to be qualified or regulated to advertise as such.
Here is the relevant paragraph [44] in the judgment about publication as a warning –
Beyond the question of the public interest, very significant in this case in itself, publication will significantly add to the safeguards against the risk posed to children by Ms Waters. The court has already implemented such safeguards as it is able, however they are far from complete. Ms Waters may move to a different local authority area. She may take work offered through word of mouth, by parents who do not ask to see a DBS check. And the other safeguards relied on by Ms Waters as rendering publication disproportionate rely solely on her honesty and reliability to be effective. In my judgment I found her to be dishonest and unreliable leaving these elements of so-called safeguards fragile. I cannot rely on her say-so that she will not work with children again. The only way that parents unaware of – or careless of – the DBS process can carry out their own checks on Ms Waters is by an internet search. Without publication they would be unaware of the findings against her when deciding whether to allow her to care for their children. Given the serious injuries sustained by the twins in this case and the continued denial by Ms Waters of any responsibility for them other than for some of them as innocent accidents, it is difficult to find a justification for withholding that information from parents who might be looking for a maternity nurse for their newborn babies in the future.
How effective a warning is publication of a judgment?
Similarly to the Albon case, we came across this judgment by chance. This has made us think about the problem that a judge who has good reason to publicise particular information in the public interest is really quite limited in ensuring access to this information. The two leading cases – Griffiths v Tickle & Ors [2021] EWCA Civ 1882 and Al M (Publication) [2020] EWHC 1222 (Fam) – where restrictions were lifted to name a parent (also in different circumstances) were already known to some journalists and were clearly newsworthy in the sense of being certain to capture some headlines. Although Mr Albon was not a well known public figure, the judge’s reasons for naming him received fairly extensive media coverage because important issues in the judgment were followed up by a local reporter who has been researching family courts.
In contrast, we can’t find any publicity about Re XY. Briefly looking at Google today, we can see that it’s still possible to find Emily Waters being advertised as a maternity nurse. We can’t see any reference to the warning about her in the court judgment.
Publication while criminal proceedings are ongoing
Another interesting point in this case is that Ms Waters asked the judge to defer naming her publicly until the conclusion of an ongoing police investigation. This is dealt with at paras 6-7:
In support of the submission that the court should delay a decision, Ms Waters submits that “a plethora of issues may arise. Examples include (a) an acquittal, (b) an appeal, (c) new evidence coming to light before or during the trial (i.e. expert evidence, the missing phone records, etc) and (d) an application to reopen the fact-finding to which this judgment relates”. In short, she submits, the court should not determine this issue without knowing the end result of the criminal process when the impact of the decision is “more predictable”.
I reject that submission. An acquittal would be irrelevant to my decision in these civil proceedings; the simple fact of an acquittal in criminal proceedings, which not infrequently follows an adverse finding in civil proceedings, does not undermine the civil decision. If there is an appeal against a criminal conviction then the order I have already made would prevent publication of the fact-finding judgment until the appeal is determined as until that determination on appeal, the criminal process would not be concluded. If fresh evidence comes to light during the criminal process leading to an application to re-open the fact-finding then Ms Waters’ team could apply for a further deferral of publication and the court would determine that application on merit. I note, of course, that should there be a criminal trial Ms Waters’ name would almost certainly already be in the public domain in any event. Finally I further reiterate, given the terms of this submission, that there are no missing phone records.
As the judgments were both handed down in September, it may be that Ms Waters did succeed in further delay until the police decided by February 2025 not to take further action.
Conclusion
As we mentioned in our post about the Albon case, no one in the mainstream media seems to trawl through BAILII or TNA anymore. Perhaps in the very unusual circumstances when a family court judge sends their authorised judgement to TNA with the intention of wider publicity, there needs to be a system whereby this important information is also made more readily accessible to the general public.
Image: thanks Greta Fotograffia at Pexels
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