Re X Children
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MUNBY,Mr Justice Munby |
| Judgment Date | 29 June 2007 |
| Neutral Citation | [2007] EWHC 1719 (Fam) |
| Court | Family Division |
| Date | 29 June 2007 |
[2007] EWHC 1719 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(In Private)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Munby
The names of the advocates and solicitors are omitted in the interests of the children
Hearing dates: 30 April 2007 and 4 May 2007
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment was handed down in private but the judge hereby gives leave for it to be published
Attention is drawn to the injunction the terms of which are set out in paragraph [74] of this judgment
I have been hearing care proceedings in respect of a number of children. One of the adults has been convicted in the Crown Court of an offence which because of its nature has attracted, at least locally, more than the usual amount of publicity in both the print and the broadcast media. In short succession I have heard applications, first, by the Crown Prosecution Service for disclosure of papers in the care proceedings for use in the criminal proceedings and, secondly, by the local authority for an order imposing reporting restrictions.
This is, I am quite satisfied, a case where more than usually vulnerable children require a greater degree of protection from media intrusion into their lives than the law would automatically afford. I am, however, confined in what I can say because, were the full family circumstances to be set out even in this deliberately anonymised judgment, I would run the very real risk of defeating the very object of the exercise. I recognise that this judgment is necessarily more enigmatic than I would have wished but I hope that I have successfully avoided the trap of making it incomprehensible: see Lord Browne of Madingley v Associated Newspapers Limited [2007] EWCA Civ 295 at para [5].
The background
On 3 March 2006 the local authority began care proceedings in respect of A, B and C (these are not their true initials). They are the three children of Mr X, who I will refer to as "the Defendant," and his wife, Mrs X. On 21 August 2006 another child, D, was born. The local authority began care proceedings in respect of D on 25 September 2006. Both sets of care proceedings were still on foot at the time these applications came before me, though the care proceedings in respect of D were likely to be finally concluded in the very near future.
The family proceedings, as I shall refer to them, have at all stages been heard in private. So the privacy and confidentiality of the family proceedings is and will continue to be protected by section 12 of the Administration of Justice Act 1960 and, at least for the time being (see Clayton v Clayton [2006] EWCA Civ 878, [2006] Fam 83), by section 97(2) of the Children Act 1989.
For reasons I have already hinted at I do not propose to go into any great detail about the family proceedings. It suffices for present purposes to say that the proceedings are more than usually complex–they are, after all, in the High Court–and that they exhibit various features which make them unusual (if unhappily far from unprecedented) even in the High Court. The family, both in its history and in its circumstances at the time when the first care proceedings were begun in March 2006, was deeply troubled. A, B and C are all afflicted in differing respects with various social, educational and emotional difficulties. All four children, as I have said, are, in their various ways, more than usually vulnerable.
To give some idea of the scale of the family proceedings I should say that the trial bundle extended to no fewer than thirteen lever arch files. The expert evidence, with its associated documentation, runs to over 900 pages; the other evidence to over 450 pages.
On 20 October 2006 the Defendant attacked the principal social worker in the case with a knife. It appears that he stabbed his victim many times, inflicting very grave and indeed life-threatening injuries from which, unhappily, it would seem that she is never likely to make either a full physical or a full psychological recovery. On 13 February 2007 he pleaded guilty at the Crown Court to a charge of attempted murder. He was in custody awaiting sentence at the time these applications were before me. The principal issue at that time was whether he should be sentenced to imprisonment or made the subject of a hospital order. The next hearing before the Crown Court had been fixed for 15 May 2007.
Subsequent to his pleading guilty to the offence of attempted murder, evidence emerged in the family proceedings indicating that the Defendant had committed other very serious offences against one of the children. Although he had not yet been charged it seemed to me that I must, at least for the time being, proceed on the footing that further charges would follow in due course. The nature of these offences, which I do not propose to describe, is such that further extensive publicity in the media is bound to follow any future proceedings in the Magistrates' Court and thereafter in the Crown Court–publicity which is likely to be all the more intense and intrusive because of the nature of the existing criminal proceedings.
The Defendant is, of course, a party to the family proceedings. He has throughout had separate solicitors and counsel acting for him in the family proceedings and in the criminal proceedings. Those who act for him in the criminal proceedings do not have access to the papers in the family proceedings. Nor, of course, does the CPS.
The applications
In anticipation of a hearing of the family proceedings which was due to take place before me on 26 March 2007, the CPS gave informal notice to the family court on 21 March 2007 of an application for disclosure to the Crown Court of documents in the family proceedings. On 26 March 2007 I adjourned that application for a hearing by video-link on 30 March 2007, directing that the CPS was to file a skeleton argument by 29 March 2007 setting out what documents it was seeking to have disclosed, the purpose of such disclosure, the identity of those individuals to whom it sought to disclose the documents and how it would seek to protect the confidentiality of the documents and the children if disclosure took place.
At that point the representatives of the CPS withdrew and the hearing of the family proceedings continued in private. By the end of the hearing of the family proceedings on 26 March 2007 it had become clear not merely that the CPS was seeking disclosure of papers for use in criminal proceedings which were due to return to the Crown Court in the near future (no doubt with renewed media attention) but also that the proceedings in respect of D were likely to conclude in the very near future–with the consequence that although D would continue to have the protection of section 12 of the 1960 Act he would, because of Clayton v Clayton [2006] EWCA Civ 878, [2006] Fam 83, lose the protection of section 97(2) of the 1989 Act.
It was in these circumstances that the local authority indicated it was minded to make application for a reporting restriction order. To enable the local authority to formulate the relief it was minded to seek, I adjourned further consideration of the matter until the hearing by video-link already fixed for 30 March 2007.
Counsel instructed on behalf of the CPS filed a very clear and most helpful skeleton argument on 29 March 2007. At the same time the local authority filed a preliminary draft application for a reporting restriction order.
At the video hearing on 30 March 2007 I first gave directions with a view to a substantive hearing of the CPS's application, again by video-link, on 30 April 2007. Included amongst those directions was a direction that there was to be discussion between the advocates in the family proceedings as to which documents in the family proceedings ought to be disclosed to the CPS and how, if at all, those documents should be edited. A further direction provided for the local authority then to file and serve a list (agreed if possible) of the documents considered appropriate to be disclosed, together with suggestions as to how (if necessary) they should be edited. Other directions made it clear that the involvement of those acting for the Defendant in the criminal proceedings was most desirable, both in the course of preparation for and indeed at the hearing on 30 April 2007.
I then turned to consider the local authority's application. It seemed to me desirable that it should be listed for hearing after the determination of the CPS's application but before the next hearing in the Crown Court. The hearing was accordingly fixed for 4 May 2007. Mindful of what had been said on the point in Oldham MBC v GW, PW and KPW (A Child) [2007] EWHC 136 (Fam) and in Re William Ward (A Child), BBC v Cafcass Legal [2007] EWHC 616 (Fam), and mindful of the need for compliance with section 12(2) of the Human Rights Act 1998, with the President's Practice Direction (Applications for Reporting Restriction Orders) [2005] 2 FLR 120 and with the Practice Note (Official Solicitor: Deputy Director of Legal Services: CAFCASS: Applications For Reporting Restriction Orders) [2005] 2 FLR 111, I gave directions that the local authority was to serve its application and supporting evidence in accordance with the Practice Direction by 18 April 2007 (which it did) and that any media organisation wishing to appear and resist the application should give notice and serve any evidence and skeleton argument by 25 April 2007. In the event the only media organisation which sought to take part was the Press Association, which served a most helpful skeleton argument dated 23...
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