We noticed two cases in which judgments were published yesterday, the very day that the President’s Transparency Review call for evidence closed – each deals with the question of whether a local authority who had brought care proceedings should be named, and each considers the 2018 guidance on anonymisation (which is one of the subjects of the President’s Transparency Review). In one case the local authority was named, whilst in the other it was not. The circumstances of each are quite different, but the rationales behind the contrasting approach to the naming of the local authority are also interesting.

Broadly speaking the contrast can be summed up like this : in the first case, where the local authority are named, there are no particular public interest features, other than those applicable to all public law cases (draconian orders, removal of a child by the state etc), whilst in the second case, where the local authority were not named, there were both strong and specific public interest arguments for publication and strong and specific arguments for anonymisation on grounds of privacy – but the privacy arguments won out.

The first case – A Local Authority Identified

In Re S (A Child) [2020] EWFC B17 (07 May 2020) His Honour Judge Middleton Roy made a care order in respect of a 7 year old child who had been living with her father. The child will now go to live in a residential unit due to her high level of need, which the father (who had cognitive difficulties) could not meet, despite his love and bond with her. Although the father’s perspective was that the local authority hadn’t offered him enough support, the judge did not agree, and in his judgment goes in to some detail about the evidence in the case, and why it was just not possible for the child to stay with her father without suffering significant harm over the long term. So although there was some criticism of the Local Authority from the father, that criticism wasn’t made out (and on the basis of what we are told in the judgment it does appear as if the difficulty really was that the father simply didn’t have the sort of high level parenting skills that this little girl needed and wouldn’t be able to develop them quickly, rather than any failure on the part of the local authority – essentially the expert evidence was saying that support wasn’t going to be able to change things. In that case the judge says this about naming the local authority :

In line with the Practice Guidance of the President of the Family Division issued in December 2018, the names of the child and the adult parties in this judgment have been anonymised, having regard to the implications for the child of placing personal details and information in the public domain.

The Local Authority is identified by name. The Local Authority is a public body with a statutory responsibility for the welfare and protection of children and support of families. Where that work has resulted in Court proceedings, the Local Authority is held accountable for its actions with families by the Court. The need for a public body to be identified when acting in respect of citizens is important. This Court concludes that naming the Local Authority would carry with it some risk of identifying the child. Having balanced the risks between transparency of justice on behalf of the State where life changing decisions are made for children, and ensuring their privacy, welfare and safeguarding needs are taken seriously and protected, this Court concludes that the public interest in identifying the applicant Local Authority is so important that it outweighs any risk of identification of the child.

The fact that this appears as paragraphs 2 and 3 of the judgment in the opening ‘scene setting’ paragraphs, suggests this is something of a preamble rather than a decision on anything contentious – that is, that in accordance with good practice and the 2018 guidance, the judge is recording that he has specifically considered whether he should identify the local authority, and has reached the view the balance falls in favour of their being named as the risk of identification is outweighed by public interest. There is little in these paragraphs that is specific to the case, and the court has anonymised the judgment so that other than the name of the local authority there are no geographical markers and the child’s date of birth is not mentioned.

The second case is where it gets interesting….

The second case – A Local Authority Criticised Yet Anonymised

A Local Authority v The Mother & Ors [2020] is a case heard by Mr Justice Hayden, sitting in the High Court. There are two judgments :

A Local Authority v The Mother & Ors [2020] EWFC 38 (11 May 2020) and A Local Authority v The Mother & Ors [2020] EWHC 1162 (Fam) (11 May 2020). The first is the ‘substantive’ decision – that two brothers could not be placed with their mother, that one brother (12) should be placed with his father, and that the second, a significantly disabled child aged 14, should be made the subject of a care order and that he would have to remain in residential care, but able to stay with his father and brother from time to time (due to limitations on their accommodation). The second is a decision about the anonymity of the local authority. Helpfully, the judge provides a link from the first through to the second (although it looks like someone forgot to insert the link back from the second to the first at the end of the proofing process, as the second published judgment tells us that the first judgment is ‘now reported as (insert)’ [sic]).

It is fair to say that the criticism in this case of the Local Authority is extensive and serious. In short, the local authority are criticised for :

  • their ‘dilatory’ approach to making adaptations to the mother’s home to enable the disabled child A to continue living there, resulting in the child spending a long period of time in residential accommodation, and only resolved by the mother’s dogged pursuit of proceedings;
  • their complete failure to act in accordance with good practice in respect of child protection matters, in particular for the social worker’s collusive relationship with the mother and failure to risk assess or give clear messages in respect of her relationship with a sex offender;
  • their exclusion of the father from the loop, following his understandable but unacceptably angry behaviour – the judge thought their response was disproportionate.

The above bullets are a very summarised explanation of the failures of the local authority – which really are quite serious and wide ranging – the full judgment warrants a proper read. In the second judgment the judge sums up his earlier judgment as having made

trenchant criticisms of the Local Authority’s conduct of the case and of two social workers in particular… I am clear that failings on this scale cannot go unheeded. I do not think that I have ever had to criticise a Local Authority to the extent that I have found it necessary to do in this case.

The judge decided though, that neither the social workers nor the local authority should be named. He tells us that his original plan had been to include the names but that issues had then been raised once he circulated his draft (it’s not clear why these hadn’t been addressed earlier) :

In the draft judgment, initially circulated to the parties, I named the Local Authority and the social workers. I did not intend that the published judgment should identify the subject children, the parents or the Schedule 1 sex offender who had brought such trouble to this family. To do so would have been manifestly corrosive of the children’s privacy.

The anonymisation judgment tells us that the proceedings about the adaptations had involved crowd funding and naming of the child in social media and in the national press, and that therefore there had been concern raised about jigsaw identification. The advocate for the local authority had ‘by entering three seemingly disconnected words in to a search engine Ms Kelly illustrated how easily child A could be identified’. This led the guardian to submit that there should not be identification of the local authority :

Though the Guardian had been forensically critical of the Local Authority’s conduct of the case she did not consider that naming the authority or the social workers was in the best interests of the children.

Hayden J says this of the general principles :

The canard of secrecy has bedevilled the family justice system in the past. The significant strides towards transparency in recent years have not yet entirely changed the public perception. There is, in my view, an understandable concern amongst the public and members of the press that failings by public bodies, particularly on the scale I identified, should not be concealed in any way. For many the importance of scrutinising such failings in a fully transparent way transcends the need to protect the privacy of vulnerable children. There are two fundamental rights engaged here, freedom of speech and children’s privacy as a facet of their family life. When evaluating where the balance lies between these two competing rights and interests it is important, to my mind, that judges of the Family Court do not allow ourselves to remain magnetically attracted to the welfare principle (i.e. that the welfare of the child is the paramount consideration). To do so distorts the relevant balancing exercise.

Hayden J considers the case law and the relevant guidance, including the December 2018 Anonymisation Guidance issued by the President of the Family Division. The draft version of this guidance prepared by Dr Julia Brophy, prior to its official sanction by the President of the Family Division, was the subject of some polite criticism by Hayden J in an earlier judgment (Re J (A Minor) [2016] EWHC 2595 (Fam)) for it’s prioritisation of privacy over the other issues the court was required to consider by law (which are set out in the above quote).

In 2016 Hayden had said this in Re J :

I am concerned however that in expressing her aim to be striking ‘a better balance between the policy that more judgments should be published’ and the concerns of ‘young people’ about ‘deeply distressing’ information ‘in the public arena’, Dr Brophy has lost sight of the legal framework that requires to be applied in any decision concerning publication. We are not concerned merely with a ‘policy’, to publish more judgments, rather we are applying the obligations imposed by Article 10 and Article 8 ECHR. This has been established law since the decision in Clayton v Clayton [2006] EWCA Civ 878; 2007 1 FLR.

…whilst Dr Brophy’s detailed suggestions are helpful when addressing the proportionality of intervention in a particular case, they must not be regarded as constructing a paternalistic presumption of privacy for every child in every case. I am sure she did not intend that her work be construed in this way. In a mature family justice system the weight afforded to the right to freedom of expression must be recognised and engaged with.

The guidance subsequently adopted by the President of the Family Division is to all intents and purposes identical to Dr Brophy’s draft, albeit that it now has the stamp of authority that Hayden J had in 2016 noted that it lacked.

Commenting on the 2018 guidance and the associated checklist in his 2020 judgment, the judge says this :

…it requires to be stated, explicitly, that even where jigsaw identification may identify the children, the counter veiling public interest in naming the Local Authority may, nonetheless, prevail. In the course of exchanges and legal argument Mr Perkins [one of the barristers] conceded that this was the correct statement of the law. To the extent that the Checklist suggests that “the default position is that an applicant should be named”, I consider that to be somewhat misleading. A parallel analysis of the competing rights and interests, predicated on presumptive parity does not, to my mind, logically permit of a “default” position.

The judge’s conclusion on the concern raised about jigsaw identification is this :

Such is the level of information in the public domain including A’s full name and images in national newspapers and various social media platforms that I am satisfied that were I to name the Local Authority, the family and therefore both children would be identified with ease.

Many of the families who live locally to the mother and who have children with disabilities themselves have, I am told, supported the fund-raising campaign and, no doubt, watched its success with interest. The social workers will be known to these families. I have heard how, in this area as is the case generally, there is a relatively tight network of families caring for children with disabilities. They and the professionals with whom they work form their own community.

In weighing up the competing factors, the judge says :

my conclusion [was] that this social work team, within this Local Authority, disregarded fundamental principles of safeguarding and child protection. The nature and extent of the failings, as well as their persistence, can only give real cause for public concern. There is an undoubted public interest in the Local Authority being named, in order that they might be subject to the kind of public scrutiny that many would regard as necessary. Mr Perkins has told me that, at the highest level within the Social Services Department for this Local Authority, there is real concern as to what has happened and a determination that there should be a full investigation. I am told and accept that there will be. Mr Perkins submits that there are “lessons to be learned”. It has to be said that this phrase is deployed so regularly when public bodies fail that it is in danger of becoming platitudinous. It is easy to see how lessons might be learned more thoroughly in the spot light of media scrutiny.

The judge’s ultimate conclusion not to publish then, is summarised like this :

The welfare solution arrived at in this case was, of necessity, second best. Though it may be painful to the family to express it bluntly, in my judgment, it requires to be. The care plan is a very poor second best. Child A wanted nothing more than to return to live permanently at his family home. The outcome of the case is that A now faces the prospect of a lifetime of institutional care, interspersed with occasional weekend and holiday visits to the home in which his father will now live. Child B is extremely close to his brother. He fervently wanted his brother to come home. I have no doubt that the extent of his disappointment, from what I have been told, is properly characterised as a grieving process. In light of my findings about M’s deception regarding her ongoing contact with a Schedule 1 Offender [sex offender], it was necessary for B to move to live with his father, in accommodation which is far too small for them. This was to have endured only until the tenancy of the former family home could be transferred in to the father’s name. That has now been done. Into this sad cluster of circumstances must now be factored the ‘social isolation’ required by the current viral pandemic. This has left B living in unsatisfactory circumstances with no outside space and with limited contact to either his brother or mother. I am told by F’s counsel that B has been stoic and mature. Nonetheless, I consider that both the Guardian and the Local Authority are right to emphasise his vulnerability and the present fragility of his situation. Ultimately, I have come to the conclusion that this tips the balance in favour of prioritising the children’s family life and emotional well-being over the legitimate public interest in identifying the Local Authority and the relevant professionals.

A failure to notify the press

The judge notes but then passes over the failure of the parties to notify the press of the dispute about the naming of the local authority :

It is unfortunate that the parties did not inform the press about this application. They are entitled to be heard and regularly attend in ‘remotely’ conducted hearings such as this. The ‘Checklist’, referred to above, specifically provides for press attendance:

“it should be open to any party, and representatives of the media, to apply to invite the Court to determine whether the case comes within the exceptions in (a) or (b) above”

This begs the question of why the press WEREN’T subsequently put on notice, particularly since it is clear from the judgments that the issue of anonymity took some time to resolve as it was raised just as Covid-19 struck.

However, at the foot of his judgment Hayden J says this :

As I have highlighted, the press was not afforded the opportunity, by the parties, to make any representations here. I hope it is clear that I have given the Article 10 arguments considerable weight in the course of my analysis. I make it clear however, that should the press wish to make representations to dislodge the anonymity that I have granted, they are entirely at liberty to make an application. I propose that this judgment will be sent directly to the Press Office in addition to being published on Bailii.

We are aware that the press, having now become aware of the judgments on publication are indeed actively seeking to be heard on the issue.

This is a judge who has historically been prepared to publish on public interest grounds, and who in Re J and in this judgment has explicitly given proper consideration to Article 10 issues rather than being over cautious about general ‘concerns’ over identification. In this case, on the specific facts he has concluded that the balance tips in favour of anonymisation, even though there is obvious public interest in their identification.

Given the care with which the balancing exercise has been undertaken and given the quite specific risks of jigsaw identification and the sensitivity of the issues, it isn’t at all obvious that the press will succeed in getting the decision overturned – but watch this space…

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