British Broadcasting Corporation v CAFCASS [FD]
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MUNBY,Mr Justice Munby |
| Judgment Date | 30 March 2007 |
| Neutral Citation | [2007] EWHC 616 (Fam) |
| Court | Family Division |
| Docket Number | Case No: CB06C00002 |
| Date | 30 March 2007 |
In the Matter of William Ward (Dob 21.4.2005)
[2007] EWHC 616 (Fam)
Mr Justice Munby
Case No: CB06C00002
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(In Public)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Godwin Busuttil (instructed by David Attfield, BBC Litigation Department) for the applicant
Ms Melanie Carew (of Cafcass Legal) for the first respondent
Ms Barbara Connolly (instructed by Legal Services, Shire Hall) for the second respondent (the local authority)
Mr Anthony Hudson (instructed by Harman & Harman) for the third respondent (the mother)
Ms Melanie Carew (of Cafcass Legal) for the fifth respondent (the child)
Mr David Lock (of Mills & Reeve) for the sixth respondent
Mr Barnabas Branston (instructed by Weightmans) for the seventh respondent
Mr Michael Brompton QC (instructed by Rex Forrester, The Medical Defence Union) for the eighth and ninth respondents
The fourth respondent (the father) was not represented
Hearing date: 6 March 2007
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Parents who were ultimately successful in resisting care proceedings begun by a local authority wish to tell their story to the British Broadcasting Corporation with a view to the BBC broadcasting a documentary about the case. The question is whether they should be able to do so and, if so, subject to what if any conditions.
The background
William Ward was born on 21 April 2005. On 21 July 2005 he was discovered to have fractures of his right tibia. On 16 December 2005 the local authority, Cambridgeshire County Council (“CCC”), began care proceedings. The case was based entirely upon the fractures, for CCC accepted that there was no other evidence of ill–treatment or poor parenting. A fact–finding hearing, to establish whether the threshold for making a care order had been passed, took place in the County Court before Her Honour Judge Plumstead.
The parents were unable to identify any cause for William's injuries from anything they had themselves seen. They hypothesised that his foot may have become trapped between his cot and his parents' bed, which was immediately beside the cot, and that he may have twisted and fractured his leg as he pulled his foot free.
In addition to hearing evidence from the parents, Judge Plumstead read contemporaneous notes or later reports prepared by, and in some cases also heard oral evidence from, various professionals: the family's general practitioners and various members of the medical staff at Addenbrooke's Hospital, to which William had been referred (who I shall refer to collectively as “the treating doctors”), two social workers, a police officer from the child protection team, and various medical witnesses who gave expert evidence (who I shall refer to collectively as “the expert witnesses”).
Judge Plumstead gave judgment on 8 December 2006. She found in favour of the parents and dismissed the case. She made three crucial findings. First (paragraph 81), she found that:
“The possibility that William caused these fractures himself is in my judgment established. The medical opinion is that it is so, albeit that they agree that they consider it improbable.”
Secondly (paragraph 94), she said that:
“I have formed the conclusion that their [scil, the parents'] evidence has not been shaken. I prefer the evidence of Mrs Ward to that of [the social worker] concerning the interview on 22 nd July.”
Thirdly (paragraph 96), she found that:
“There is no cogent evidence that these parents injured their son. I am accordingly not satisfied that the significant harm suffered by him was due to him not having received the care to be expected for a reasonable parent.”
That is, of course, a reference to the statutory test in section 31(2) of the Children Act 1989.
The facts
In May 2006, at a conference in London organised by the Eaton Foundation, a support group for families accused of harming their children, the parents met Karen Wightman, a producer/director in the BBC's documentaries department. Shortly afterwards the parents began recording a video diary of their experiences, using equipment and tapes supplied by the BBC, with a view to the footage being included in a documentary programme which it was envisaged the BBC might prepare and broadcast on television. There are now 14 tapes representing some 14 hours recording. It is important to note what the mother says in her witness statement. She states “categorically” that “there has been no covert filming of any professionals or anyone at all involved in the case” other than the family. “There has been no filming … of anyone who has had anything to do with the case apart from our family.” (The word “of” does not appear in the statement but counsel for the mother confirmed to me on instructions that this was a slip and that the statement was indeed to be read with the word inserted.) Were the documentary to be made it might incorporate some 30–45 minutes of the video footage.
The proceedings
The following applications have been made to the court:
i) On 6 December 2006 the mother applied for an order that Judge Plumstead's judgment be reported. Despite being given permission to do so by an order made by Judge Plumstead on 8 December 2006, the mother has not amended that application.
ii) On 21 December 2006 the Chief Constable of Cambridgeshire applied for an order that in the event of Judge Plumstead's judgment being released the name of a police officer referred to in the judgment should be replaced by the words “an officer of Cambridgeshire Constabulary.”
iii) On 18 January 2007 the BBC applied for an order (i) that the mother and the father be permitted to disclose the video footage to the BBC (including footage in which the child is visibly identifiable and footage in which the parents and any other individual discuss the child and/or the proceedings) and (ii) that Judge Plumstead's judgment be made publicly available. The order was sought on the basis of an assurance that the BBC would not disclose into the public domain or to third parties outside the BBC any of the video footage “if and insofar as such disclosure would constitute a breach of section 12 of the Administration of Justice Act 1960.”
iv) On 13 February 2007 the Cambridge University Hospital NHS Foundation Trust (“the Trust”) applied for an order that the names of the doctors employed by the Trust involved in the case are not made public.
On 16 February 2007 Judge Plumstead gave directions, joining the first to seventh respondents (respectively, Cafcass Legal, CCC, the mother, the father, the child, the Trust and the Cambridgeshire Constabulary) as respondents to the BBC's application; directing that each medical professional who gave evidence or whose report was filed in the care proceedings be invited to be joined as a respondent (Doctor A and Doctor B availed themselves of this invitation and in accordance with Judge Plumstead's order were joined as the eighth and ninth respondents); directing that Cafcass Legal was to consider whether it was appropriate for it to instruct an Advocate to the Court; and directing that the application be listed before a Judge of the Division on 6 March 2007. In accordance with Judge Plumstead's order the matter was listed before me for directions on 6 March 2007.
It is important to note, as Mr Godwin Busuttil on behalf of the BBC pointed out, that Dr A and Dr B have not made any formal application (their position is set out in correspondence and in a preliminary position statement / skeleton argument on their behalf prepared by Mr Michael Brompton QC). More significantly, none of the respondents has served the Press Association in accordance with paragraphs 3 and 4 of the President's Practice Direction (Applications for Reporting Restriction Orders) [2005] 2 FLR 120 and paragraph 4 of the Practice Note (Official Solicitor: Deputy Director of Legal Services: CAFCASS: Applications For Reporting Restriction Orders) [2005] 2 FLR 111.
The BBC's (revised) application
As matters developed it emerged that, subject to one very important qualification, no-one was seeking to argue against either the publication of Judge Plumstead's judgment or the disclosure to the BBC of the video footage. The qualification – and it was a major qualification – was that various participants in the process wished to preserve their anonymity. There was no objection to the public identification of the family, the child, the children's guardian, CCC, the hospital or the Cambridgeshire Constabulary. But the social workers, the police officer, and some at least of the treating doctors and the expert witnesses preferred to preserve their anonymity.
With a view to meeting these objections, at least for the immediate future, the BBC proposed a more limited form of order. In the first place, the BBC accepted that Judge Plumstead's judgment should be published with the names of the social workers, the police officer, the expert witnesses and those of the treating doctors employed by the Trust removed. Secondly, the BBC offered, in addition to the previously proffered assurance that the BBC would not disclose into the public domain or to third parties outside the BBC any of the video footage “if and insofar as such disclosure would constitute a breach of section 12 of the Administration of Justice Act 1960,” the further...
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