Re X (Children)
| Jurisdiction | England & Wales |
| Judgment Date | 2011 |
| Neutral Citation | [2011] EWHC 1157 (Fam) |
| Year | 2011 |
| Date | 2011 |
| Court | Family Division |
Children - Family proceedings - Restriction on publication - Local authority withdrawing care proceedings - Expert witness not called and report not relied upon - Judge criticising report in published judgment - Whether expert to be identified - Whether expert’s report to be disclosed - Guidance on relevant factors when considering identification and disclosure -
The judge granted the local authority leave to withdraw care proceedings which they had brought in respect of three children. He subsequently released a judgment in which he criticised the report prepared by the medical expert witness in the case although, since the proceedings had been withdrawn, the expert witness had not given evidence at the hearing and his report had not been relied upon.
On an application by an investigative journalist, supported by the children’s mother, for permission for the media to name the expert witness—
Held, granting the application and giving permission to disclose the expert’s report, that, since the restrictions imposed by section 97(2) of the Children Act 1989, as amended, no longer operated once proceedings had come to an end and since section 12 of the Administration of Justice Act 1960, as amended, did not prevent publication of the names of witnesses, there was nothing to prevent the expert witness being named in the media unless the court exercised its jurisdiction to restrain publication; that that jurisdiction should be exercised only where there was a convincing case based on compelling social need for interfering with the rights of the media under article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms; that, on the facts, the balance came down in favour of not preventing identification of the expert; that disclosure of the expert’s report was prohibited under section 12 of the 1960 Act unless the court exercised its jurisdiction to permit disclosure; that, since the judge had criticised the expert whose name was to go into the public domain as its author, elementary justice required that the expert be given the opportunity to debate his report and defend his work; that it was important that the necessary debate about the quality and content of expert evidence should be informed, which could only be achieved by the disclosure of the report; and that, accordingly, the report, redacted to remove the names of the children and their parents but not those of the treating doctors or the children’s general practitioner, could be published since the risk of the children being identified as a result was so small that the article 10 arguments prevailed over their article 8 rights (post, paras 29, 32, 69, 70, 75, 79–80, 85, 88–90).
Per curiam. It is of the utmost importance that the family justice system should be as transparent as possible, consistent always with the need to protect the identities of the children involved. It is extremely important for children and for the family justice system that paediatricians undertake the work of being expert witnesses. Where work is properly and conscientiously done and the methodology is professionally sound, experts have nothing to fear from the courts and can be confident that they will have judicial support, whether the judge ends up agreeing with their evidence or not. Provided that the anonymity of any children involved is preserved and that any real risk that identification of an expert might lead to a child refusing to engage in the forensic process can be addressed, a practice should develop in which expert reports would be routinely disclosed and the media able to make informed comment on them and the use to which they were put in the proceedings. That would mean that the views of the judge on the expert evidence would also be disclosed. It will remain necessary in each case for an application for disclosure to be made and for every tribunal to consider whether there is an outstanding welfare issue which needs to be addressed by a continuing order for anonymity (post, paras 76, 86, 93–95).
The following cases are referred to in the judgment:
A v Ward
B v United Kingdom [
B (A Child) (Disclosure), In re
British Broadcasting Corpn v CAFCASS Legal
British Broadcasting Corpn v Coventry City Council (Care Proceedings: Costs: Identification of Local Authority) [
Clayton v Clayton
Coventry City Council v X, Y and Z (Care Proceedings: Costs) [
Guardian News and Media Ltd, In re
H (A Child) (Freeing Orders: Publicity), In re
L (A Child) (Media Reporting), In re
Local Authority, A v W
Meadow v General Medical Council
Niemietz v Germany (
R (Care: Disclosure: Nature of Proceedings), In re [
Reynolds v Times Newspapers Ltd [
S (A Child) (Identification: Restrictions on Publication), In re
Webster, In re; Norfolk County Council v Webster
X (A Child) (Residence and Contact: Rights of Media Attendance: FPR Rule 10/28(4)), In re
ZH (Tanzania) v Secretary of State for the Home Department
The following additional cases, supplied by courtesy of counsel, were cited in argument:
Brown v Matthews [
Doorson v The Netherlands (
John v Rees [
Kent County Council v B
Von Hannover v Germany (
The following additional cases, supplied by courtesy of counsel, although not cited, were referred to in the skeleton arguments:
Bensaid v United Kingdom (
British Broadcasting Corpn v Rochdale Metropolitan Borough Council
Kelly v British Broadcasting Corpn [
Medway Council v G
APPLICATION
By an application dated 13 October 2010 the applicant, Brian Morgan, intervening in care proceedings which had been instituted by the local authority, Coventry City Council, in respect of three children, X, Y and Z, but subsequently withdrawn with leave given on 19 February 2010 by Judge Bellamy sitting as a judge of the Family Division in the Coventry District Registry, sought permission to name an expert medical witness, Dr M, who had been instructed in, and prepared a report for the purposes of, those proceedings.
The case was heard and judgment given in private. The judgment is reported by leave of the judge on the basis that the anonymity of all parties would be preserved unless already in the public domain.
The facts are stated in the judgment.
The applicant in person.
Piers Pressdee QC (instructed by
Adam Wolanski (instructed by
Bertie Leigh, solicitor (of
Alistair MacDonald QC (instructed by
The mother in person.
The court took time for consideration.
11 May 2011. SIR NICHOLAS WALL P handed down the following judgment.
Introduction1 In this application, Mr Brian Morgan, a freelance journalist, has applied for an order “for permission for the media to name the medical expert witness” in the case, Dr M.
2 The background is care proceedings instituted by Coventry City Council, the local authority, on 20 June 2008 in relation to three children hitherto identified only by the initials X, Y and Z. X is a boy now aged 13; Y is a girl now aged 10; Z is a boy now aged 8. The proceedings were heard by Judge Bellamy, sitting as a judge of the High Court.
3 In a judgment handed down on 19 February 2010, Judge Bellamy gave the local authority leave to withdraw the proceedings but ordered it to pay £100,000 towards the publicly funded costs of the parents of X, Y and Z. That judgment has not been published. However, Judge Bellamy prepared what he described as an “abbreviated version of the judgment”, which bears the same date and is now reported as Coventry City Council v X, Y and Z (Care Proceedings: Costs) [2011] 1 FLR 1045. In his judgment the judge was highly critical of Dr M’s report, although, as will be apparent, he did not hear Dr M.
4 The two judgments referred to in para 3 above did not name the local authority, and in a further judgment dated 27 September 2010, now reported as British Broadcasting Corpn v Coventry City Council (Care Proceedings: Costs: Identification of Local Authority) [2011] 1 FLR 977, Judge Bellamy, on the application of the...
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