Melanie Newman v Southampton City Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Roberts |
| Judgment Date | 31 July 2020 |
| Neutral Citation | [2020] EWHC 2103 (Fam) |
| Date | 31 July 2020 |
| Docket Number | Case No: PO16C01149 |
| Court | Family Division |
[2020] EWHC 2103 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mrs Justice Roberts
Case No: PO16C01149
Anya Proops QC, Zac Sammour and Kate Temple-Mabe (instructed by Howard Kennedy LLP) for the Applicant
Heather Rogers QC and Sarah Earley (instructed by Southampton City Council) for the Local Authority
Deirdre Fottrell QC (instructed by Goodman Ray) for the Guardian
Hearing dates: 2 nd and 3 rd March 2020
Judgment released to counsel on 31 May 2020
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.
Introduction
This is an application by a professional journalist who seeks a disclosure order which, if granted, will enable her to see the court file and other materials relating to public law care proceedings which concluded in October 2018. The child at the centre of those proceedings is M who was born in November 2012. M is now 7 1/2 years old. On the application of the local authority she was removed from her mother's care in June 2015 when she was 2 years old. With the mother's consent, a care order was made and M was placed in the care of her father. That placement subsequently broke down and M's mother made an application to discharge the care order on the basis that M would return to live with her rather than remain with foster carers.
In June 2016, after a hearing which lasted four days, His Honour Judge Hess sitting in the Family Court at Portsmouth rejected the mother's application to discharge the care order. Instead, he authorised the local authority to place the child for adoption. Had that order survived its subsequent journey to the Court of Appeal, the outcome for M and her mother would have resulted in the severing of all ongoing family ties between them.
The first hearing of this case in the Court of Appeal took place in January 2018. Lady Justice King delivered the court's judgment which is reported as M (A Child) [2018] EWCA Civ 240. The Court of Appeal set aside the placement order and remitted the matter for a rehearing. The mother was not eligible for legal aid and, for the purposes of bringing that appeal, she was obliged to fund the proceedings to the tune of about £20,000. It was money she could ill afford. The Court on that occasion declined to make an award of costs against the local authority because “it is not possible to say that the local authority has been unreasonable in defending the judge's decision, it being a decision that was in line with all professional advice and was supported by the children's guardian” (paragraph 75).
Following the decision of the Court of Appeal in February 2018, the matter was relisted before the Designated Family Judge in Portsmouth, His Honour Judge Levey. By that stage the case had attracted wider media interest and there had been several reports about the case both locally and nationally. At the hearing on 19 October 2018 three respected and experienced journalists appeared at court to observe the hearing as they were entitled to do under the Family Procedure Rules. They had accorded the judge the courtesy of letting him know in advance that they would attend in order to make an application to vary the usual reporting restrictions. One of those journalists was Ms Newman. She was accompanied by fellow journalists, Ms Sanchia Berg and Ms Louise Tickle, who has been present in court, with my permission, throughout this hearing.
In terms of the development of the care proceedings at that point in time, the local authority had commissioned two expert assessments following the decision of the Court of Appeal. Those assessments were positive from the mother's perspective. She was by then working constructively with both the local authority and the experts. The plan for M changed to one based on rehabilitation within the family.
In the summer of 2018, M was returned to the full-time care of her mother where she has remained ever since. She was then nearly 6 years old and had spent over three years of her life in foster care. Those were three very important years in this child's life. Notwithstanding the conclusion of the proceedings and the absence of any further state intervention in M's family life, Ms Newman seeks access to the information and material which informed the earlier decision-making of the local authority and the court. She became interested in the case in 2018 following the decision in the Court of Appeal. She had by then begun a wider investigation into what she perceived to be an unusually high percentage of cases in this particular local authority's area which resulted in adoption orders and was keen to understand what might be driving that trend (if indeed such a trend existed).
Thus, by the time the matter was relisted before His Honour Judge Levey on 19 October 2018 after its first journey to the Court of Appeal, there was a clear consensus as to the way forward. The court was invited to discharge the care proceedings and substitute a six-month supervision order. All that remained for the judge to decide was the issue of the extent to which there should be a relaxation of the existing restrictions on reporting. Counsel who appeared for the mother on that occasion told the court that, whilst there was no criticism of the local authority's approach in terms of its willingness to change the plan for M, there was “a flaw in the system”. Nevertheless, through her counsel, she was urging on the court a cautious approach to the issue of reporting which she said must be “very sensitive to her request that matters are kept as private as possible in terms of identification” which should include the potential for jigsaw identification.
His Honour Judge Levey permitted the reporting of the original judgment delivered by His Honour Judge Hess on an anonymised basis. He went on to approve a reporting restriction order which not only prevented further reporting: it also had the effect of restricting the reporting of information about the family which was already in the public domain as a result of the publication of the Court of Appeal judgment delivered in February 2018.
Ms Louise Tickle, one of Ms Newman's fellow journalists, lodged an appeal against that order. The BBC applied to be joined as a party to their appeal. By the time the case reached the Court of Appeal, there was a consensus amongst all parties, including the representatives of the media, in relation to the terms of a replacement reporting restriction order. In advance of the listed appeal hearing, a short hearing was convened on 15 February 2019 in order to take stock. The media representatives were anxious to preserve the full listing in order that they might canvass wider issues of principle and practice generated by the facts of this particular case. The President, Lord Justice McFarlane, sitting with Lady Justice King, declined on that occasion to take the opportunity to use the hearing date as an opportunity to issue wider guidance on “this somewhat complicated but very important area relating to transparency in the family courts”. His Lordship acknowledged the absence of any detailed guidance or road map to assist journalists on how such applications were to be determined and expressed his resolve as President to issue such guidance at the earliest opportunity after full consultation with all relevant stakeholders.
We shall see how that guidance emerged in due course.
Ms Newman has remained in touch with M's mother, the second respondent to this application, who does not oppose the application for disclosure. The application is opposed by the local authority and M's Guardian in terms of its reach and the nature and quantity of information and documents sought.
At the outset, it is important to note that this is not an application for permission to publish any of the material which may be released as a result of the disclosure order which Ms Newman seeks. She accepts that she would need to come back to the court and seek that permission on a separate occasion were her journalistic endeavours to lead to a story or an article which she wished to put before the public at large. Should she succeed in her present application, she accepts that she would continue to be bound by whatever restrictions the court considered appropriate and she has made it clear through her counsel from the outset that she would observe those restrictions to the letter. It is acknowledged by all parties to this application that Ms Newman is an experienced and responsible journalist who has a particular interest in this case.
The events which precipitated the original care proceedings
As is clear from that brief exposition of these proceedings to date, there are a number of reported judgments in the case, two from the Court of Appeal reported as M (a Child) [2018] EWCA 240 (24 January 2018) and R (a child) [2019] EWCA Civ 482 (15 February 2019). The original judgment delivered by His Honour Judge Hess in June 2017 has also been made available to Ms Newman and her legal team. Whilst each of these judgments has been anonymised to an extent, they contain a significant amount of material about M's early life, her medical history and the events which led to her being removed from, and ultimately returned to, her mother's care. M's mother has since remarried and the family now includes M's new half-sibling.
The information which is already in the public domain can be summarised in this way.
M's mother came to live in England some twenty years ago where she trained as a nurse. She met M's father...
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