BR & Ors, Re (Transparency Order: Finding of Fact Hearing) [2023] EWFC 9

Judgment handed down by Poole J

Background

Poole J directed that three public family law applications brought separately by three different Local Authorities should be consolidated and heard together at a finding of fact hearing.  

The matter related to allegations that the mother in each unconnected family had fabricated or induced illness in their child.

A common feature within each of the three cases was that the involved were being treated at Sheffield Children’s Hospital in the same period.

Issues

On 29 November 2022, the President of the Family Division, Sir Andrew McFarlane, issued ‘The Transparency Reporting Pilot Guidance’ outlining a new pilot project whereby journalists would be able to report on matters within the Family Courts, similar to Criminal proceedings. This was published alongside a template Transparency Order.

The pilot was due to begin on 30 January 2023 in Leeds, Cardiff, and Carlisle. However, Poole J considered whether to adopt the pilot from the outset, two weeks prior to the commencement of the scheme.

Accordingly, Poole J made a Transparency Order (TO) adopting the template provided. He provided the parties with the opportunity to make written or oral submissions to consider varying or discharging the order on 17 January 2023.

Law/Authorities Considered

The Judge made reference to the President’s Guidance on the Reporting Pilot, along with referencing Articles 6, 8, and 10 of the European Convention on Human Rights. In line with Section 12(4) of the Human Rights Act 1998, the court recognised the importance of freedom of expression in relation to journalistic material.

Further, the court considered that Section 12 of the Administration of Justice Act 1960 prohibits the publication of information in family law proceedings. However, the court may disapply this provision. The Judge made particular reference to Section 97 of the Children Act 1989 which outlines that no publication of information about any child involved in proceedings is permitted, and doing so would be a criminal offence. Similar provisions are found in Section 45 of the Youth Justice and Criminal Evidence Act 1999. This is supported by Section 49 of the Children and Young Persons Act 1933 whereby publication relating to a child is prohibited if it is likely to lead to the identification of them being involved in proceedings. This includes the publication of names, addresses, school, and any pictures.

Munby J in Re Webster; Norfolk County Council v Webster [2006] EWHC 2733, [2007] 1 FLR 1146, held that Section 97(4) Children Act 1989 should be read as allowing the court to dispense with the prohibition in Section 97(2) if required.

Finally, Poole J considered Re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593 and Griffiths v Tickle [2021] EWCA Civ 1882. Within these cases, it was noted that a balance should be struck between the publication of matters and the child’s rights to their private and family life.

Judgment

Poole J concluded:

• The pilot scheme should be adopted at the outset due to significant public interest in reporting on family matters.
• The TO was made with two variations to the template specifically that:

1. No reporting was permitted until criminal proceedings against all of the mothers had concluded, or until the CPS decided that no proceedings would be brought, and no further action would be taken.
2. A confidential schedule be added to the order to outline the real names of family members, including the children; the purpose being to ensure accidental reporting did not occur.

• Pilot reports were able to attend either in person or remotely.
• The court must be satisfied that the pilot reporters understood the transparency order and the responsibility of it.
• Like in criminal proceedings, a significant responsibility is placed on the pilot reporters to use their professional judgment to ensure compliance with the TO. However, specific directions can be made within the TO to prevent ‘jigsaw identification’, as within this case.
• The documentation provided to the pilot reporters needed to be restricted to the opening and closing position statements or skeleton arguments, and the indices to the hearing bundle. Any further requests for documentation must have permission from the Judge.
• Four named members of the Transparency Project were able to share information and documents with each other.
• Due to a strong public interest, the naming of Sheffield Children’s Hospital was to be disclosed as it was a ‘significant common feature’ within the three cases.
• Any applications to vary the Transparency Order could be made when they arose throughout the hearing at suitable intervals.

The full judgment can be found at: https://www.bailii.org/ew/cases/EWFC/HCJ/2023/9.html

Re M [2023] EWFC 17

Background

This matter considers if notification of the birth father is necessary in this case of adoption where the mother has provided agreement, and the adoption order is being sought by the prospective adopters.

The child, M, was twenty months old and was placed in the care of the prospective adopters when he was one day old. M’s mother, C, was not in a relationship with the birth father when M was born, and the birth father was unaware of the pregnancy.

C did not wish for the birth father to know of the pregnancy, M’s birth, or have an input in any decisions to be made in respect of M. C said she was supported in this decision by social workers who told her that the decision in respect of M’s birth father was hers to make. The concern here is that if this is what C was advised by the social workers, the law has been misrepresented to her.

The importance of wider family engagement and ensuring that the option of a child remaining with its natural family has been explored, and is present in both domestic and European law. Although the local authority could not force C to provide details of M’s birth father, they have a duty to assess the reasons for refusing to disclose, and to make independent enquiries if appropriate.

Analysis of the relevant case notes suggests that the local authority did not explore the reasons C refused to disclose the identity of the birth father or make any independent enquiries. The local authority also did not seek legal advice on how they should proceed.

Issues

The prospective adopters applied to the court to adopt M in March 2022, with the first hearing being listed in June 2022 following the local authority filing an Annex A report. At this hearing, the judge declined to make the adoption order on the basis that the court should not do so without having considered if the birth father should be notified.

The leading authority is the case of A, B, and C (Adoption: Notification of Fathers and Relatives) [2020] EWCA Civ 41 which outlines the procedure which should be adopted in this scenario. This expressly includes a provision for where a birth parent wishes for notice of the birth of the child to be withheld from the father or extended family members.

The case notes and chronology in the matter in question suggested that the social workers supported C by holding meetings, providing guidance, and affording her the time to consider her position before signing any form of agreement to the adoption. However, it is evident that there were serious errors in the local authority’s process, with some steps set out in the above authority missed out fully.

The consequences of these errors have led to C feeling let down, the prospective adopters having lost trust in the local authority, and a potential risk to M’s welfare.

In July 2022 the local authority made an application under Part 19 of the Family Procedure Rules (FPR) and invited the court to invoke the inherent jurisdiction to direct that the local authority need not notify the birth father. The process was approved by Cobb. J in Re RA (Baby Relinquished for Adoption) [2017] 1 FLR 1610. which found that Part 19 of the FPR may be used where Part 18 does not apply and ‘the applicant seeks the court’s decision on a question which is unlikely to involve a substantial dispute of fact’.

The local authority’s position then changed, with notification of the father being supported. C sought to support the local authority’s original position, that being to not notify the father. The allocated Children’s Guardian was in support of the father being notified.

Judgment

The judge considered a range of influencing factors, including:

• parental responsibility;
• Article 8 rights;
• the substance of the relationships;
• the likelihood of a family placement being a realistic alternative to adoption;
• the physical, psychological or social impact on the mother or on others of notification being given;
• cultural and religious factors;
• the availability and durability of the confidential information;
• the impact of delay;
• and any other relevant matters.

The reasons for both notification and non-notification were laid out within the judgment. The effect of notification upon both C and M was considered as part of the judgment, including the potential risk of causing further delay to M. The judge concluded that the circumstances of this case are similar to that of Re A, B, and C, and thus the father should be notified.

Full judgment: https://www.bailii.org/ew/cases/EWFC/HCJ/2023/17.html

Re S (A Child) and Re W (A Child) (s.20 Accommodation) [2023] EWCA Civ 1

Background

S and W were in long-term placements provided by two different local authorities. The threshold criteria in respect of both children were met due to their being beyond parental control. The care plans were supported by the children’s parents, however, in both cases, the trial judge ruled that it was in the children’s best interests to be made subject to care orders.

Issue

An appeal was lodged on the basis that it was appropriate for children to be accommodated under s.20 by a local authority on a long-term basis. The question for the appeal court was if the trial courts should have declined to make care orders, bearing in mind the ‘no order’ principle. Previous case law focused on s.20 accommodation as a short-term provision for children. The difference in this case was that s.20 was sought to be used as a long-term measure.

King LJ analysed the difference between care orders and s.20. Care orders are known to grant local authorities’ parental responsibility, which is the key difference in this matter.

The recent comments by Dame Keegan in Re H-W (Children) [2022] UKSC 1451 were considered, with particular attention being paid to the notion that a care order should only be granted if it is the least interventionist possible, otherwise it would constitute an interference in the child and family’s Article 8 rights. Consideration was also given to the leading authority on s.20 accommodation, Williams v London Borough of Hackney [2018] UKSC 37,  which addresses the partnership between parents and local authorities in making decisions about children. Further consideration was given to the 2021 report of the President’s Public Law Working Group by King LJ.

It was decided that further judicial guidance in respect of the proper use of s.20 would serve ‘little purpose’.

Judgment

The appeals were allowed, and the Court of Appeal held that children may be accommodated under s.20 without the requirement for a care order, on a long-term basis, where the placement and care plan is supported by the children’s parents. The children were ordered to remain in their current placements.

In respect of S, the court took the view that a care order would not be proportionate. Although S’ father could remove S from placement, a lack of evidence to suggest he would do so was concluded to be an unsubstantiated risk by the court. King LJ also noted that a live with order may be made in favour of one parent, which would prevent another parent from removing the child from the s.20 accommodation.

In respect of W, the court took the view that the trial judge erred in their view that s.20 may only be used as a short-term measure, affecting the analysis which resulted in the making of a care order. It was also found that it would be disproportionate in any case to make a care order which grants the local authority parental responsibility in order to mitigate the future risk that a child may develop challenging behaviour and enforce relevant boundaries.

Full case: https://www.bailii.org/ew/cases/EWCA/Civ/2023/1.html

Written by Pupil Barristers, Ellen Boyes and Annabelle Coakley.