Melanie Newman v Southampton City Council
| Jurisdiction | England & Wales |
| Judge | Lady Justice Macur,Lady Justice King |
| Judgment Date | 25 March 2021 |
| Neutral Citation | [2021] EWCA Civ 437 |
| Date | 25 March 2021 |
| Docket Number | Case No: B4/2020/1357 |
| Court | Court of Appeal (Civil Division) |
and
[2021] EWCA Civ 437
THE MASTER OF THE ROLLS
Lady Justice Macur
and
Lady Justice King
Case No: B4/2020/1357
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT (FAMILY DIVISION)
Mrs Justice Roberts
Royal Courts of Justice
Strand, London, WC2A 2LL
Anya Proops QC, Zac Sammour and Kate Temple-Mabe (instructed by Howard Kennedy LLP) for the Appellant
Heather Rogers QC and Sarah Earley (instructed by Southampton City Council) for the Respondent Local Authority
Deirdre Fottrell QC and Tom Wilson (instructed by Goodman Ray) for the Respondent Guardian
Hearing dates: 4 March 2021
Approved Judgment
Introduction
This is an appeal against an order made by Roberts J on 28 August 2020. By her order, the judge refused to permit the Appellant, Melanie Newman (“Ms Newman”), to have access to documents held by the 1 st Respondent Local Authority, Southampton City Council (“SCC”), that relate to care and placement proceedings in relation to a girl (“M”) who is now 8 years of age.
It was common ground that the judge, under the inherent jurisdiction of the High Court, could have made an order in the terms sought. It was also common ground that the proper approach for the judge to take in reaching her determination was by conducting, against the backdrop of the open justice principle, a balancing exercise as between Article 8 of the European Convention on Human Rights (“ECHR”) (privacy rights of the mother and M) and Ms Newman's Article 10 ECHR rights of freedom of expression.
It is further agreed between the parties, as confirmed by the Supreme Court in PJS v News Group Newspapers Ltd [2016] AC 1081 at [20] (“ PJS”) that:
“20. The exercise of balancing article 8 and article 10 rights has been described as “analogous to the exercise of a discretion”: AAA v Associated Newspapers Ltd [2013] EWCA Civ 554 at [8]. While that is at best only an analogy, the exercise is certainly one which, if undertaken on a correct basis, will not readily attract appellate intervention.”
The issue before this court is whether, on the facts of this case, the judge fell into error in the way in which she undertook the crucial balancing exercise.
Background
The background to the care proceedings in relation to M is set out in some detail in the judge's judgment at paras.[1] – [19] ( Newman v Southampton City Council [2020] EWHC 2103 (Fam)). In brief, M's mother (“the mother”) was a single parent to M who suffered from a number of developmental issues and severe allergies. On two occasions, the mother attended hospital by ambulance with M, the mother having unnecessarily administered medication to her by way of an EpiPen. This raised serious concerns for M's continued safety with her mother.
In June 2015, M was taken into police protection and placed with foster carers. On 31 March 2016, following a number of assessments, a care order was made with the consent of the mother, on the application of SCC. The mother agreed the s31 Children Act 1989 threshold criteria which recorded that M was at risk of significant harm in her mother's care. The factual basis supporting that conclusion included the inappropriate use of the EpiPen. The care plan was not for adoption, but for M to live with her father.
By June 2016, M's father had withdrawn from the rehabilitation plan and the local authority, therefore, reassessed the mother. Following the reassessment, SCC's revised care plan was for adoption and not for rehabilitation to the mother. Given that there was a care order in place, in order to have M rehabilitated to her care, the mother's only recourse was to apply for the discharge of the care order. In June 2016, the mother's application was dismissed and HHJ Hess made a placement order, thereby facilitating SCC's plan for adoption.
The mother appealed. The Court of Appeal set aside the placement order and remitted the matter for a rehearing ( Re M (a child) [2018] EWCA Civ 240). Fresh assessments were carried out and by May 2018 the plan was for rehabilitation and, after some three years in foster care, M now aged 6 years of age, was returned to her mother's care where she has remained ever since.
On 19 October 2018, final orders were made discharging the care order and a supervision order was made for six months. At the final hearing a number of respected journalists including Ms Newman were present. At the conclusion of the hearing the judge made a reporting restrictions order which, as everyone subsequently appreciated, was over zealous in its desire to protect M in that it prevented the media from reporting of information contained in the Court of Appeal judgment, which was not only in the public domain but had been handed down in open court and was readily accessible on Bailii.
On 15 February 2019, the matter was once again before the Court of Appeal; Ms Louise Tickle, one of the journalists who has been following the case, appealed the terms of the reporting restrictions order. The appeal was allowed by consent and the President of the Family Division Sir Andrew McFarlane (“the President”) gave a brief judgment ( R (A Child) [2019] EWCA Civ 482).
Following the conclusion of the proceedings, Ms Newman has maintained contact with the mother and it is against the background of these protracted proceedings that Ms Newman, with the consent of the mother, now wishes to access the documents in the case in order to use the proceedings relating to M as a case study.
Jurisdiction
Cases concerning children continue to be held in private. The confidentiality of children caught up in proceedings is protected during the course of the proceedings by s97(2) Children Act 1989, and both before and after the proceedings have concluded by:
(i) s12 Administration of Justice Act 1960:
“(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say—
(a) where the proceedings—
(i) relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;
(ii) are brought under the Children Act 1989 or the Adoption and Children Act 2002; or
(iii) otherwise relate wholly or mainly to the maintenance or upbringing of a minor;”
(ii) The Family Procedure Rules 2010 r.29.12, provides that no document or copy of a document filed or lodged in the court office shall be open to inspection by any person without the permission of the court. The High Court has jurisdiction under its inherent jurisdiction to grant permission. Whether or not to do so will be a balancing exercise weighing factors in favour against those against (see Re X (Disclosure of Information) [2001] 2 FLR 440 para.[23]).
Duly accredited members of the press are permitted, pursuant to FPR r.27.11, to attend proceedings held in private. By FPR PD 27B.2.3, such attendance does not entitle a media representative to “receive or peruse court documents referred to in the course of evidence, submissions or judgment without the permission of the court” (other than in accordance with PD12G which permits disclosure to third parties in certain circumstances which do not apply in the present case).
In the President's Guidance: Attendance of the Media [2009] 2 FLR 167, issued to coincide with the change in the rules permitting press attendance at family hearings, the rationale for allowing the press to attend hearings was described at para.[15] as to “avoid charges of ‘secret justice’ and to promote better understanding of the working of the family courts”. The guidance went on to say that access to court documents would not be “necessary or desirable” given their confidential nature.
Sir Mark Potter P emphasised this point, suggesting that:
“Where a representative of the media in attendance at the proceedings applies to be shown court documents, the court should seek the consent of the parties to such representative being permitted (subject to appropriate conditions as to anonymity and restrictions upon onward disclosure) to see such summaries, position statements and other documents as appear reasonably necessary to a broad understanding of the issues in the case.”
Since the publication of the 2009 guidance there has been a move towards greater transparency: in 2014, the then President of the Family Division Sir James Munby issued Practice Guidance (Family Courts: Transparency) [2014] 1 WLR 230, which led to a significant increase in the number of judgments publicly available. This was later supplemented in December 2018 by further guidance on the anonymisation of such judgments.
With effect from October 2018, a pilot scheme has been in place which, under FPR PD 36J, permits “duly authorised lawyers attending for journalistic, research or public legal educational purposes” to attend. In other words, legal bloggers or reporters may now attend private hearings involving children.
In October 2019 the President issued guidance as to reporting in the family courts. The guidance sets out the approach to be taken to applications made by journalists who wish to vary reporting restrictions to allow reporting of proceedings at, or following, a hearing. “Documents disclosed to reporters” continue to be subject to s12 AJA 1960 and s97 Children Act 1989 and remain confidential.
The 2019 Guidance at para.14 identifies the task of the court when faced with...
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