Re K (A Child: Wardship: Publicity)(No 2)

This judgment was delivered in private. The judge has given leave for it to be reported on the strict understanding that (irrespective of what is contained in the judgment) in any report no person other than the advocates or the solicitors instructing them and Coventry City Council (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the child and the adult members of her family must be strictly preserved.

These proceedings concern Katie. Katie is now aged 16. She is a ward of court. How Katie came to be made a ward of court is described in two earlier judgments handed down on 27 July 2012 ( Re K (Post-Adoption Placement Breakdown) [2013] 1 FLR 1) and on 22 November 2012 ( Re E (Wardship Order: Child in Voluntary Accommodation) [2013] 2 FLR 63).

The proceedings have given rise to issues of transparency. I dealt with those issues, in part, in a judgment handed down on 25 July 2013 Re K (A Child: Wardship: Publicity)[2013] EWHC B11 (Fam). The parents now raise three related issues. Firstly, they invite me to give leave to publish, in anonymised format, an extempore judgment I gave on 19 February 2013 relating to the provision of therapy for Katie. Secondly, in their future discussions with the media (permitted by my judgment dated 25 July 2013) they seek permission to identify themselves as 'MG and FG, the parents of Katie' (the pseudonyms I used for Katie and her parents in my earlier published judgments). Thirdly, they seek a Declaration that it would not be a contempt of court for them to publish, by discussing with the media, certain specific information relating to the history of their experiences of parenting a child suffering from reactive attachment disorder ('RAD'), of working with this local authority and of engaging with the family justice system. Those three issues are the subject of this judgment.

The background history is set out fully in the earlier judgments to which I have referred. It is unnecessary to repeat it.

The 19 February judgment

Background

In my judgment dated 27 July 2012 I highlighted Katie's urgent need for therapy. That was and is one of the most important aspects of this case. I was critical of the local authority for what I considered to be its tardiness in addressing that issue (see in particular paragraphs 127 to 131).

Had the care order I made on 27 July 2012 remained in force the court would have had no continuing supervisory role in monitoring the authority's discharge of its responsibilities. That would have been a matter for the Independent Reviewing Office. But the care order does not remain in force. It was discharged by the Court of Appeal on 22 November 2012. Katie was then made a ward of court. The court does, therefore, have an ongoing role to play in the local authority's management of Katie's care. That role is particularly important so far as Katie's therapeutic needs are concerned.

Submissions

On behalf of the parents, Mr Downs submits that the provision of therapy is 'an important part of the narrative of this extraordinary case'. The judgment of 19 February 2013 sets out the challenges of facilitating therapy in a case such as this and the particular difficulties the parents have had in securing the co-operation of Coventry City Council in enabling Katie to access appropriate therapy. It is therefore appropriate that that judgment, in anonymised format, should be put in the public domain.

The local authority does not oppose publication of that judgment, though invites me to redact extracts from an e-mail from Dr Richer in which he makes reference to Katie's attitudes and behaviours.

The Children's Guardian opposes publication. In her submissions on behalf of the guardian, Miss Meachin makes three points. Firstly, that the issues addressed in that judgment are discrete issues concerning choice of therapy provider. The point being made here, I assume, is that there is no public interest in those issues. Secondly, that the issues addressed in the February judgment 'do not fall within the areas analysed by the Court' in Re K (A Child: Wardship: Publicity) and in particular the analysis set out at paragraphs 76 to 80. Thirdly, that it is inappropriate to publish Dr Richer's references to Katie's attitudes and behaviours. This third point is, in essence the same point as that made by the local authority.

Discussion

Since I handed down my judgment on transparency issues on 25 July the pressing need for much greater transparency in the family courts has been underlined by Sir James Munby P in Re J (A Child)[2013] EWHC 2694 (Fam). He there said,

'[25] Before proceeding any further, I do, however, need to emphasise a number of critically important matters. There is nothing new in what follows but the matters to which I wish to refer are so important that they bear constant repetition.

[26] The first matter relates to what it has become conventional to call transparency. There is a pressing need for more transparency, indeed for much more transparency, in the family justice system. There are a number of aspects to this.

[27] One is the right of the public to know, the need for the public to be confronted with, what is being done in its name. Nowhere is this more necessary than in relation to care and adoption cases. Such cases, by definition, involve interference, intrusion, by the state, by local authorities and by the court, into family life. In this context the arguments in favour of publicity — in favour of openness, public scrutiny and public accountability — are particularly compelling. The public generally, and not just the professional readers of law reports or similar publications, have a legitimate, indeed a compelling, interest in knowing how the family courts exercise their care jurisdiction: Re X; London Borough of Barnet v Y and X[2006] 2 FLR 998, para [166]…

[31] The compelling need for transparency in the family justice system is demanded as a matter of both principle and pragmatism. So far as concerns principle I can do no better than repeat what Lord Steyn said in R v Secretary of State for the Home Department ex p Simms [2000] 2 AC 115, 126, where, having referred to Holmes J's dissenting judgment in Abrams v United States (1919) 250 US 616, he continued:

"freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. … It facilitates the exposure of errors in the … administration of justice of the country."

[32] This takes me on to the next point. It is vital that public confidence in the family justice system is maintained or, if eroded, restored. There is a clear and obvious public interest in maintaining the confidence of the public at large in the courts. It is vitally important, if the administration of justice is to be promoted and public confidence in the courts maintained, that justice be administered in public — or at least in a manner which enables its workings to be properly scrutinised — so that the judges and other participants in the process remain visible and amenable to comment and criticism. This principle, as the Strasbourg court has repeatedly reiterated, is protected by both Article 6 and Article 10 of the Convention. It is a principle of particular importance in the context of care and other public law cases.'

Those remarks provide the backdrop against which decisions relating to publication of family court judgments must be made. They are contextual.

In Re K (A Child: Wardship: Publicity) I set out the law relating to the approach the court must take in any case in which it is required to decide whether to relax the provisions set out in s.12 Administration of Justice Act 1960 (see paras 54 to 63). I have in mind the same principles in determining this present application. I also have in mind the context in which the decision falls to be made.

Katie's Art 8 rights and the parents' (and the media's) Art 10 rights are as set out in my judgment of 25 July. The factors I took into account in my earlier judgment in undertaking the ultimate balancing test (see paras 76 to 80) are equally relevant to the decision whether to agree to publication of my judgment of 19 February. I am in no doubt that the balance comes down in favour of publication. In arriving at that conclusion I have two particular points in mind in addition to those set out in my earlier judgment.

The first point relates to the subject matter of the judgment of 19 February. Katie is a young person who suffers from RAD. Her need for therapy is clear and longstanding. At the time of my judgment of 19 February that need was unmet. The delay in addressing that need continued to be a matter of great concern. It is not an exaggeration to say that the provision of appropriate therapy for Katie is crucial to her long-term future. If there is a public interest in telling this family's story (and I remain satisfied that there is) then this issue is an important part of that story. It should be told unless to do so would compromise Katie's anonymity.

Secondly, and more generally, transparency is important not only to enable the public to see and have confidence in the process by which the family court arrives at what are frequently life-changing decisions for children and families but also to provide a window through which the public may see the way that local authorities discharge their duties, to provide a better understanding of both the challenges facing local authorities and of...