P (A Child)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 17 December 2013 |
| Neutral Citation | [2013] EWHC 4048 (Fam) |
| Docket Number | Case No: FD13P02300 |
| Court | Family Division |
| Date | 17 December 2013 |
[2013] EWHC 4048 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
Case No: FD13P02300
Mr Rex Howling QC (instructed by Essex County Council) for the applicant
Hearing date: 13 December 2013
This judgment was handed down in open court
Sir James Munby, President of the Family Division:
This is an application by Essex County Council for a reporting restriction order in a matter which has been the subject of much reporting and comment in the media both in this country and around the world. Too much of that reporting has been inaccurate — though that, as I shall explain, is not entirely the fault of the media — and some of it has been tendentious, to use no stronger word. It is accordingly both necessary and desirable that I set out the background before turning to address the one application that is currently before me.
The background
Alessandra Pacchieri, the mother, came to this country in, I think, early June 2012. She had no, or very little, previous connection with this country. She was on a short visit. She was pregnant. Following what she describes as a panic attack, she was detained pursuant to section 3 of the Mental Health Act 1983 on 13 June 2012.
On 23 August 2012 the relevant NHS Trust made an urgent application to Mostyn J sitting in the Court of Protection. Having concluded that the mother lacked capacity to decide for herself, he authorised the performance of a caesarean section and, if necessary and appropriate, the use of restraint. He gave his reasons in an extempore judgment: Re AA [2012] EWHC 4378 (COP).
The mother's daughter, P, was born by caesarean section the next day, 24 August 2012. Essex County Council began care proceedings the same day. Later the same day a District Judge at Chelmsford County Court granted an interim care order and authorised the local authority to refuse contact in accordance with section 34(4) of the Children Act 1989. P was placed in foster care. The mother had some contact with her. Various hearings took place at Chelmsford County Court before His Honour Judge Newton which there is no need for me to detail.
On 17 January 2013 Essex County Council applied to Chelmsford County Court for a placement order in relation to P pursuant to section 22 of the Adoption and Children Act 2002.
The final hearing took place on 1 February 2013. The mother, who had returned to Italy on 21 October 2012, returned for the hearing. Judge Newton made both a care order and a placement order. His reasons are set out in the extempore judgment he gave on 1 February 2013: Re P (A Child). It speaks for itself.
The mother did not seek to challenge any of these orders in the Court of Appeal. Indeed, she has never done so. Instead she took various proceedings in the Italian courts, first in Florence and then in Rome. The proceedings in Italy came to an end on 13 September 2013.
Subsequently, Essex County Council applied to Chelmsford County Court for an order giving it leave to place P for adoption. Judge Newton made that order on 25 October 2013. Not long after, P was placed with prospective adopters, with whom she remains.
Until 1 December 2013 none of this information was in the public domain in this country. Nor were the judgments given by Mostyn J on 23 August 2012 and by Judge Newton on 1 February 2013. Indeed, at that point no approved transcript of either judgment was in existence.
Events since 1 December 2013
The story 'broke' in this country on 1 December 2013 with the publication of prominent accounts of the case in two Sunday newspapers. Since then there has been very extensive coverage in the print and to a lesser extent the broadcast media. There has also been extensive discussion of the case on the internet, the blogosphere, by legal commentators and others.
On 2 December 2013 Essex County Council issued a statement. Headlined 'Essex County Council responds to interest in story headlined "Essex removes baby from mother"', it read as follows:
"Key Dates
There have been lengthy legal proceedings in this case over the past 15 months.
• Mother detained under Section 3 of the Mental Health Act on 13 June 2012
• Application by the Health Trust to the High Court 23 August 2012
• Application for Interim Care Order 24 August 2012
• Mother took part in the care proceedings ending on 1 February 2013
• Mother applied to Italian Courts for order to return the child to Italy in May 2013. Those courts ruled that child should remain in England
• In October 2013 Essex County Council obtains permission from County Court to place child for adoption
Context
The Health Trust had been looking after the mother since 13 June 2012 under section 3 of the Mental Health Act. Because of their concerns the Health Trust contacted Essex County Council's Social Services.
Five weeks later it was the Health Trust's clinical decision to apply to the High Court for permissions to deliver her unborn baby by caesarean section because of concerns about risks to mother and child.
The mother was able to see her baby on the day of birth and the following day. Essex County Council's Social Services obtained an Interim Care Order from the County Court because the mother was too unwell to care for her child.
Historically, the mother has two other children which she is unable to care for due to orders made by the Italian authorities.
In accordance with Essex County Council's Social Services practice social workers liaised extensively with the extended family before and after the birth of the baby, to establish if anyone could care for the child.
Statement on behalf of Essex County Council
"The long term safety and wellbeing of children is always Essex County Council's priority. Adoption is never considered until we have exhausted all other options and is never pursued lightly.""
Also on 2 December 2013 I authorised the Judicial Office to issue the statement that I had:
"ordered that the matter be transferred to the High Court and any further application in respect of the child be heard by [me]."
After hours on the same day, 2 December 2013, I made two orders. In accordance with my direction they are dated 3 December 2013. The first, in the Court of Protection, was in the following terms:
"IT IS ORDERED by the President of the Court of Protection of his own motion that any further applications in these proceedings or relating to the [mother] are reserved to and are to be listed before and heard by him."
The other, in the Chelmsford County Court, read as follows:
"IT IS ORDERED by the President of the Family Division of his own motion that:
(a) these proceedings and any further proceedings relating to [P] that may be issued in the Chelmsford County Court are to be transferred to the Family Division of the High Court of Justice forthwith; and
(b) any further applications in these proceedings or in any future proceedings relating to [P] are reserved to and are to be listed before and heard by him."
On 3 December 2013 a national newspaper ran a front page story under the headline 'EXLAIN WHY YOU SNATCHED BABY AT BIRTH'. The strapline, 'Judge's order to social workers behind forced caesarean', was elaborated in the accompanying article, which stated that I had "demanded to know why the girl should not be reunited with her mother". That was simply not so. All I had done was as I have set out above. I had directed no hearing. How could I? And I had given no directions as to the evidence that might be required at some future hearing of an application that had not yet been made. How could I? All I had done was to direct that any further application was to be heard by me. In other words, if any application was made, either in the Court of Protection or in the family court, I would hear it. That was all. Unhappily this canard has been much repeated in the media.
On the same day, 3 December 2013, Judge Newton authorised the publication of his judgment of 1 February 2013. It was made available the same day by the Judicial Office.
During the afternoon of the same day, 3 December 2013, an application was made to me, without notice to anyone else, by Essex County Council seeking a reporting restriction order. The application was made by telephone. I refused the application. In the circumstances I gave no formal judgment but my reasons were set out in a statement I drafted and which I authorised the Judicial Office to publish the next day, 4 December 2013:
"Re P (A Child)
Yesterday afternoon (Tuesday 3 December 2013) an application by telephone was made to the President of the Family Division, Sir James Munby, by leading counsel on behalf of Essex County Council seeking a 'without notice' reporting restriction order prohibiting publication of the name and date of birth of the child and the names of the child's mother, the child's father and any member of the mother's family and any pictures of the family if such publication was likely to lead to the identification of the child.
The application was made by telephone because the President was away from London carrying out his official duties.
The President decided that the circumstances were not such as, having regard to section 12(2) of the Human Rights Act 1998, to justify the making of any order unless steps had first been taken by Essex County Council to notify the media of the application. He made clear that he was ready to hear any further application which Essex County Council might wish to make having given notice to the media. No such further application has been made."
The same day, 4 December 2013, Essex County Council renewed its application for a reporting restriction order, the application now being made on notice. The papers were put before me. On my instructions the following...
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