Re Ward
| Jurisdiction | England & Wales |
| Judge | Lord Justice Munby,LORD JUSTICE MUNBY |
| Judgment Date | 15 March 2010 |
| Neutral Citation | [2010] EWHC 538 (Fam),[2010] EWHC 205 (Fam),[2010] EWHC 16 (Fam) |
| Docket Number | Case No: FD07C01234 |
| Court | Family Division |
| Date | 15 March 2010 |
In the matter of WILLIAM WARD (dob 21.4.2005)
[2010] EWHC 16 (Fam)
Before: Mr Justice Munby
(now Lord Justice Munby)
Case No: FD07C01234
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Adam Clemens (instructed by Rex Forrester of the Medical Defence Union) for the First and Second Applicants
Mr David Lock (instructed by Mills & Reeve LLP) for the Third and Fourth Applicants
Ms Barbara Connolly (instructed by Legal Services, Cambridgeshire County Council) for the Fifth Applicant
Mr and Mrs Ward in person
Ms Kate Wilson (instructed by the BBC Litigation Department) lodged a skeleton argument on behalf of the British Broadcasting Corporation
Hearing dates: 16–17 June 2009
Further submissions dated 22–23 July 2009
Lord Justice Munby:
This is the much delayed sequel to a judgment I gave as long ago as 30 March 2007: British Broadcasting Corporation v Cafcass Legal and others [2007] EWHC 616 (Fam), [2007] 2 FLR 765.
The case as it is now presented raises two questions of fundamental importance in relation to the practice and procedure of the Family Division, indeed of all family courts:
i) The first relates to the meaning and effect of section 12(1)(a) of the Administration of Justice Act 1960 and involves a question the answer to which, despite the by now extensive jurisprudence on the topic, is seemingly not altogether clear.
ii) The second relates to the anonymity of professional witnesses in care proceedings under Part IV of the Children Act 1989: specifically, whether three categories of witness – medical experts, treating clinicians (in which phrase I include nursing as well as medical staff) and social workers – should have their anonymity protected by contra mundum injunctions.
I emphasise at the outset that, although these questions have to be resolved in the context of the concrete facts of the specific case – after all, as Lord Steyn made clear in In Re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, at para [17], “an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary” – the truth is that the particular factual context here is largely unexceptional. Without for a moment seeking to diminish the tremendous significance of the proceedings for the three human beings most directly involved – Mr and Mrs Ward and their son William – the fact is that the care proceedings which give rise to the issues I now have to resolve did not exhibit, from the forensic perspective, any particularly unusual or striking features. And with only two exceptions (see below) none of the professionals involved was singled out by the judge who tried the care proceedings, Her Honour Judge Isobel Plumstead, either for blame or for praise. So the reality is that the issues presented to me for decision arise in a singularly ‘pure’ context. This is not, so far as the central issues are concerned, a fact-specific case. I emphasise the point at the outset because the inescapable reality is that the issues I have to address are in large measure points of pure principle and that my answers to the questions posed are likely to be determinative of similar questions in many, indeed even in the generality, of care cases hereafter.
The factual background: the care proceedings in the County Court
I take the facts from the summary which I set out in my previous judgment: British Broadcasting Corporation v Cafcass Legal and others [2007] EWHC 616 (Fam), [2007] 2 FLR 765, at paras [2]–[5].
William Ward was born on 21 April 2005. On 21 July 2005 he was discovered to have fractures of his right tibia. On 16 December 2005 the local authority, Cambridgeshire County Council (CCC), began care proceedings. The case was based entirely upon the fractures, for CCC accepted that there was no other evidence of ill-treatment or poor parenting. A fact-finding hearing, to establish whether the threshold for making a care order had been passed, took place in the county court before Judge Plumstead.
Mr and Mrs Ward were unable to identify any cause for William's injuries from anything they had themselves seen. They hypothesised that his foot may have become trapped between his cot and their bed, which was immediately beside the cot, and that he may have twisted and fractured his leg as he pulled his foot free. In addition to hearing evidence from the parents, Judge Plumstead read contemporaneous notes or later reports prepared by, and in some cases also heard oral evidence from, various professionals.
Judge Plumstead gave judgment on 8 December 2006. She found in favour of the parents and dismissed the case. She made three crucial findings. First (para [81]), she found that:
“The possibility that William caused these fractures himself is in my judgment established. The medical opinion is that it is so, albeit that they agree that they consider it improbable.”
Secondly (para [94]), she said that:
“I have formed the conclusion that their [scil, the parents'] evidence has not been shaken. I prefer the evidence of Mrs Ward to that of Ms A [the social worker] concerning the interview on 22 July.”
Thirdly (para [96]), she found that:
“There is no cogent evidence that these parents injured their son. I am accordingly not satisfied that the significant harm suffered by him was due to him not having received the care to be expected for a reasonable parent.”
That is, of course, a reference to the statutory test in section 31(2) of the Children Act 1989.
In her judgment, Judge Plumstead referred to a large number of professionals by name. In the anonymised version of her judgment whose publication I authorised (see British Broadcasting Corporation v Cafcass Legal and others [2007] EWHC 616 (Fam), [2007] 2 FLR 765, at paras [19], [70]) these names were replaced by initials. It is convenient at this point to refer to the various groups of professionals referred to by Judge Plumstead:
i) Treating clinicians: Dr D and Dr E (the family's general practitioners); Staff Nurse A, Dr F, an SHO, Dr G, a paediatric clinical fellow, Dr H, a consultant paediatrician, and Dr I and Dr J, both consultant radiologists (all employees of Cambridge University Hospitals NHS Foundation Trust at Addenbrooke's Hospital, to which William had been referred); and Dr K, a consultant community paediatrician (an employee of Cambridgeshire Primary Care Trust);
ii) Expert witnesses: Dr A, a consultant paediatrician, Dr B and Dr L, both consultant paediatric radiologists, Dr C, a rheumatologist, Dr M, a consultant radiologist, and Dr N, a consultant paediatric orthopaedic surgeon.
iii) Social workers: Ms A and her manager Ms B.
Judge Plumstead also referred to the police officer from the child protection team who, together with Ms A, had interviewed both Mr and Mrs Ward.
Judge Plumstead singled out two of these professionals. She was critical of Dr C, observing (para [80]) that it was:
“perhaps not surprising that in the end no party, and in particular neither parent, argued that I should place any reliance on [his] evidence. Nor would I have done. I formed the clear view that he was unwise and unprofessional in his initial response to Mrs Ward's email, and that he failed to be guided by the duty of professional detachment that the court requires of experts.”
In contrast (para [56]), she said that Dr ‘A’s paediatric overview had been of “tremendous assistance”. Speaking generally of the four experts other than Dr C who had been instructed for the purpose of the proceedings – Dr A, Dr B, Dr M and Dr N; Dr L, it should be noted, had been instructed previously by the police with a view to criminal proceedings which in the event were never brought – she said (para [55]) that their evidence “demonstrated their impartiality regardless of the source of their instructions.”
The factual background: the proceedings in the High Court
The background to the proceedings in the High Court is described in my earlier judgment: British Broadcasting Corporation v Cafcass Legal and others [2007] EWHC 616 (Fam), [2007] 2 FLR 765, at paras [6]–[9].
At the hearing before me on 6 March 2007, it became clear (para [10]) that although there was no objection to the public identification of the family, the child, the children's guardian, the local authority, the hospital or the Cambridgeshire Constabulary, the social workers, the police officer, and some at least of the treating clinicians and the expert witnesses preferred to preserve their anonymity. But this raised issues which, as I made clear (para [37]), could not be resolved within the confines of what was only a comparatively short directions hearing. They were, moreover, issues of some complexity on which I required more detailed argument and, furthermore, issues in relation to which the parties might, as it seemed to me, wish to adduce further evidence. Accordingly, while making an order the effect of which was to permit the identification of the family, the hospital and the local authority, the publication of Judge Plumstead's judgment and the disclosure by the family to the BBC of various video tapes, I granted an interim contra mundum injunction (para [53]) prohibiting the identification of the social workers, the police officer, the treating clinicians and the expert witnesses pending full argument on the outstanding issues.
For reasons which there is no need for me to rehearse, but which are fully explained in my earlier judgment, that order was expressed (para [70]) as ceasing to have effect 28 days after written...
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