Re W (Children)
| Jurisdiction | England & Wales |
| Judge | Lord Justice McFarlane,Lady Justice Macur,Lady Justice King |
| Judgment Date | 25 February 2016 |
| Neutral Citation | [2016] EWCA Civ 113 |
| Docket Number | Case No: B4/2015/3816 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 February 2016 |
[2016] EWCA Civ 113
Lord Justice McFarlane
Lady Justice Macur
and
Lady Justice King
Case No: B4/2015/3816
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE,
FAMILY DIVISION
Mr Justice Peter Jackson
ET13C00119
Royal Courts of Justice
Strand, London, WC2A 2LL
Miss Janet Bazley QC and Miss Carly Henley (instructed by Bendles Solicitors) for the Appellant
Mr Karl Rowley QC and Miss Jennifer Scully (instructed by Livingstone Solicitors) for the First Respondent
Miss Jane Cross QC and Mr Peter Rothery (instructed by Cumbria County Council) for the Second Respondent
Miss Gillian Irving QC (instructed by Denby and Co Solicitors) for the Third Respondent
Ms Caoilfhionn Gallagher (instructed by RPC) for the Fourth Respondents
Hearing date: 23 November 2015
The context of this judgment
On 23 rd November 2015 this court heard an appeal from a decision made by Mr Justice Peter Jackson in relation to orders allowing for publicity and media attendance at a fact finding hearing which was due to re-opened the following day in Liverpool in the course of care proceedings with respect to children. Permission to appeal had been granted on the previous working day and the appeal hearing therefore took place as a matter of some urgency.
At the conclusion of the hearing before this court we announced our decision, which was to allow the appeal, but only to a very limited extent, on the basis that our reasoned judgments would be handed down at a later date.
The re-opened fact finding hearing took place before Peter Jackson J in December 2015 and the judge has now published his final judgment, dated 19 th January 2016, with a neutral citation [2016] EWHC 14 (Fam) ("Jackson J's final judgment"). The full judgment is publicly available on the Bailii website ( www.bailii.org). The hearing itself, together with the judge's conclusions, have been given widespread publicity in the local and national media.
Jackson J's final judgment of January 2016 includes a clear and comprehensive account of the history of these proceedings alongside a detailed description of the evidence relating to the factual dispute and, of course, the judge's conclusions. It is not therefore necessary in this judgment to repeat much of that detail. The summary of the background to the proceedings that now follows is therefore focussed very largely on the issue of publicity which formed the context for the present appeal.
Relevant background
The care proceedings heard by Jackson J related to five of the seven children born to "the mother". Mr Paul Worthington, who had been publicly named in the lower court proceedings, is the father of three of those children and I shall refer to him as "the father" within this judgment.
Poppi Worthington was born, as one of twins, on 20 th October 2011. The mother and father are her parents. Poppi died on 12 th December 2013 at the age of 13 months. Her death, which occurred at a time when she was in the care of her parents, was sudden and unexpected. On admission to hospital and at post-mortem she was found to have an earlier fracture to her right lower leg and suspected acute injuries in the region of her anus. The main purpose of the fact finding hearings conducted by Jackson J was to enquire into the causes and circumstances of those injuries. At no stage has the medical evidence achieved sufficient clarity so as to identify a cause for Poppi's death. Thus, although, as a matter of timing, her death occurred in close proximity to the discovery of the injuries to her anus, the cause of her death remains unascertained, with no medical reason being identified for it.
In circumstances of which Jackson J was extremely critical, care proceedings in relation to the youngest five surviving children were not issued until 23 rd October 2013, more than 10 months after Poppi's death. At the conclusion of the first fact finding hearing which took place over the course of 15 days in March 2014, Jackson J handed down a full judgment which concluded that the father had perpetrated a penetrative anal assault on Poppi. He held that the local authority had failed to prove that the leg fractures were caused by one or other of the parents, whether deliberately, negligently or by accident, but that it was established that the parents had failed to obtain medical care for Poppi in relation to, what was, a serious leg injury that they either knew or ought to have known she had suffered. As I have indicated, it was not possible to establish the cause of Poppi's death, and, consequently, no adverse findings were made against the parents in respect of her death. At the conclusion of that hearing in March 2014 no part of the judge's judgment was released for publication and it therefore remained a confidential document within the care proceedings pursuant to the Administration of Justice Act l960, s 12. At that stage Poppi's inquest had been adjourned and was due to be held later in 2014. Poppi's parents had been arrested on 27 th August 2013 and had been released on bail. As at March 2014 the police investigation was still in progress.
During the course of the subsequent police investigation additional medical opinion was sought. In short terms, the effect of this additional medical opinion was to cast some doubt upon the reliability of the factual finding made against Poppi's father with respect to the anal injuries. On 16 th March 2015 the Cumbria Constabulary announced that neither parent would face criminal proceedings.
Relying upon the new expert evidence prepared during the course of the police enquiry, the father issued an application in the Family Court on 7 th April 2015 seeking the discharge of the care orders and, effectively, inviting re-consideration of the March 2014 findings. On 23 rd April 2015 Jackson J granted the father's application for a further hearing. It was that hearing that took place in November 2015 and resulted in the final judgment handed down on 19 th January 2016.
Publicity
The position with respect to publicity that I have described as obtaining following the first fact finding judgment in March 2014, namely that the cloak of confidentiality attached to the judge's judgment and the evidence within the proceedings did not remain unchanged between that date and the judge's decision to grant a re-hearing in April 2015.
Following the March 2014 hearing, the local authority applied for a widely drawn injunction restricting reporting of the case to the extent that the names and identities of all of the family members (including that of Poppi) and any of the agencies concerned in the case would be rendered anonymous for a period of 15 years. That application, which was opposed by some 8 media organisations representing a wide cross-section of the serious print and broadcast media, was determined by Jackson J at a hearing on 11 th July 2014. The judge concluded that there should be no restriction upon naming both Poppi and the father, so that the forthcoming inquest and potential criminal proceedings could be conducted with some degree of openness. He did, however, maintain a restriction upon reporting the names of the surviving children and the mother, or the specific identification of the locality in which the family had lived. These latter restrictions were primarily imposed to protect the children from any direct adverse impact from publicity at a time when they were settling into new foster homes and had, recently, been given some understanding of what had happened to their sister Poppi. No restriction was imposed upon naming the agencies that had been involved, with the exception of the hospital (this restriction was later lifted). At that time the judge's fact finding judgment remained confidential.
In addition, at a further hearing on 28th July 2014, Jackson J granted a request made by the media for a senior lawyer in each of the media organisations (if they were so instructed) to be provided with a copy of the fact finding judgment so as to inform any application that the media may wish to make to challenge the reporting restriction order and/or its scope.
This court has been told that, following the partial lifting of reporting restrictions in July 2014, there had been widespread reporting identifying both Poppi Worthington and her father, Paul Worthington, by name and referring to the responsible local authority and police force. The level of publicity increased for a time around the first inquest into Poppi's death that was held on 21 st October 2014. Media organisations were critical of the inquest proceedings, during which, at a hearing apparently lasting only a matter of minutes, the coroner announced that he was adopting the findings made by Jackson J in the High Court family proceedings without disclosing those findings or otherwise giving any reasons for holding that Poppi's death was 'unexplained'.
In response to the increased publicity and some concern expressed over the reporting restrictions that were in place, Jackson J took the unusual course of issuing a public statement on 27 th October 2014 concerning the 'Reasons for the Current Reporting Restrictions Order'. The relevant sections of that statement in the context of this appeal read as follows:
"The reporting restriction order prohibits the identification of the surviving children or their mother, or their homes, schools, nurseries, or home town.
The order does not prevent the naming of Poppi, or her father, or reporting of the circumstances of her death, provided that any report would not lead to the identification of...
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