Re M and N (Wards) (Publication of Information)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUTLER-SLOSS,LORD JUSTICE STUART-SMITH,THE MASTER OF THE ROLLS |
| Judgment Date | 11 July 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J0711-3 |
| Docket Number | 89/0698 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 July 1989 |
[1989] EWCA Civ J0711-3
The Master of the Rolls
(Lord Donaldson)
Lord Justice Butler-Sloss
Lord Justice Stuart-Smith
89/0698
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(MR. JUSTICE THORPE)
Royal Courts of Justice
MR. JAMES MUNBY Q.C. and MR. JAMES PRICE (instructed by Messrs. Oswald Hickson Collier & Co.) appeared for the Appellants (Philip Pledger and Welland Valley Newspapers).
MR. LIONEL SWIFT Q.C. and MR. JOHN MITCHELL (instructed by the Solicitors Department, Royal Borough of Kensington and Chelsea) appeared for the Respondent (local authority).
MR. HENRY TUSCAN (instructed by the Official Solicitor) appeared for the minors.
MISS ISOBEL PLUMSTEAD (instructed by Messrs. Kingswood Stacey, London agents for Messrs. Kelham & Sons, Stamford) appeared for the Foster Parents.
This appeal arises from an injunction granted by Thorpe J. on 15th March 1989 and continued on 22nd March 1989 in wardship proceedings concerning two children, "F", now 14, and "P", now 10. "F" has teen a ward of court since 3rd May 1976 and "P" since 15th March 1989. The injunctions were granted against a provincial newspaper group who desired to publish information about the removal of the wards from their foster family.
The children, who are not related, were each received into the care of the local authority within a few months of birth. "F" was placed with the foster mother in 1976 and "P" in 1979, and both have remained with her until 3rd March 1989. The foster mother's marriage came to an end; she remarried and by her second husband has two children. The second husband is therefore the present foster father. The circumstances and correctness of the removal from the foster family will be in issue in wardship proceedings due to be heard later this year.
In considering the appropriateness of the injunction granted to restrain publication it is necessary first to recognise that there are (at least) two different perceptions of the actions of the local authority in removing the children from their foster home.
One perception is that of the Social Services Department of the local authority who are responsible for the welfare of children in their care tinder the provisions of the Child Care Act 1980. The local authority case is that a social worker became aware of difficulties between the children and the foster father and inquiries were made. Both children were seen and expressed views about the family dynamics. In the course of these inquiries, in February 1989 "F", for the first time, made specific allegations of a sexual nature against the foster father to a social worker. She was adamant that she did not want the foster parents told. The social workers honoured this confidence until 23rd March.
In the light of this information and other concerns about the welfare of both children, the Social Services Department decided that it was in the best interests of the children to remove them from the foster home. On 3rd March the children did not return home after school and were placed elsewhere. The foster parents were informed by letter of some of the reasons for the removal but the allegations of a sexual nature were omitted. A second letter to the foster parents also omitted that highly relevant information.
In the wardship proceedings relating to "F" an undertaking had been given by the local authority in 1978 not to remove the child without leave of the court. In pursuance of that undertaking the local authority applied to the judge on 14th March for approval of the removal on 3rd March. The judge made the order and gave directions which included making the foster mother a party to the wardship proceedings. On 15th March, as a result of inquiries by the local newspaper of social workers, an ex parte application by the local authority for an injunction against press publicity was granted by the judge. At the same time "P", who was in care by reason of a local authority resolution, was also made a ward of court. On the application by the local newspaper to discharge the injunction on 22nd March the judge continued it in respect of both wards. The Official Solicitor, who was the guardian of "F", was, on 22nd March, told for the first time of the allegations made by "F". At the request of the Official Solicitor the social workers informed the foster parents of "F's" allegations on 23rd March.
The local authority consider that they have the right and the duty to remove children whom they consider to be at risk or whose welfare otherwise requires them to act, where necessary without prior consultation or even notification even though the placement with foster parents has been long established. They also consider, and are supported in this by the Official Solicitor, now representing both children, that any publicity about these facts is likely to lead to the identification of the children, such identification and consequential publicity being manifestly to their disadvantage in the sad circumstances in which these unfortunate children now find themselves.
The other perception is that of the foster parents, the public and, particularly, the local newspaper. The two children were removed without any warning from a home and a foster mother with whom they had lived for many years and almost their entire lives. The newspaper was informed, not by the foster parents, of the removal of the children. A reporter called on the foster parents, who told them the story as they knew it. The newspaper made other inquiries and got in touch with the local authority. They indicated that they wished to publish the story on 19th March but were concerned about the welfare of the children. They were advised by a representative of the local authority not to publish, being given reasons which they considered insufficient. They were served with the injunction and applied to the judge to discharge it, both on the grounds that no injunction should have been granted in the circumstances and that it was, in any event, in too wide a form. The provincial newspaper is old-established and well regarded with a responsible attitude to wider considerations than "publish and be damned". They do not want to act to the detriment of the children. They do, however, consider that they have a public duty to inform the public in their area of the way in which the local authority has exercised its undoubted power and to put the spotlight on a possible abuse of such power with the resulting adverse effects upon the individuals who have suffered from it.
The opposing considerations of the welfare of the children and the freedom of the Press to publish are thus clearly raised. In this court it is conceded that the court has jurisdiction to grant an injunction and accepted by the newspaper that the identity of the children should be safeguarded. The main issue has therefore been the form and scope of the injunction to be granted, but it is necessary briefly to look first at the jurisdiction of the court and the issues involved.
The issue of media publicity surrounding children who are wards of court has come before the courts in increasing numbers in the last few years. Unlike the criminal courts and juvenile courts, it is the practice in the High Court and County Courts for child applications in wardship, custody and access, among others, to be heard in private. Wardship cases were at common law placed in a special category. In Scott v. Scott (1913) A.C. 417 Viscount Haldane stated the general principle at page 435:
"…the power of an ordinary Court of justice to hear in private cannot rest merely on the discretion of the judge or on his individual view that it is desirable for the sake of public decency or morality that the hearing should take place in private. If there is any exception to the broad principle which requires the administration of justice to take place in open Court, that exception must be based on the application of some other and overriding principle which defines the field of exception and does not leave its limits to the individual discretion of the judge."
At page 437 he said:
"While the broad principle is that the Courts of this country must, as between parties, administer justice in public, this principle is subject to apparent exceptions, such as those to which I have referred. But the exceptions are themselves the outcome of a yet more fundamental principle that the chief object of Courts of justice must be to secure that justice is done. In the two cases of wards of Court and of lunatics the Court is really sitting primarily to guard the interests of the ward or the lunatic. Its jurisdiction is in this respect parental and administrative, and the disposal of controverted questions is an incident only in the jurisdiction. It may often be necessary, in order to attain its primary object, that the Court should exclude the public. The broad principle which ordinarily governs it therefore yields to the paramount duty, which is the care of the ward or the lunatic."
Lord Shaw of Dumfermline at page 483 said of the wardship jurisdiction:
"The affairs are truly private affairs; the transactions are transactions truly inter familiarity and it has long been recognized that an appeal for the protection of the Court in the case of such persons does not involve the consequence of placing in the light of publicity their truly domestic affairs."
Since the Administration of Justice Act 1960 the proceedings are governed by statute. Section 12 states:
"(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court...
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