X and Y (Children)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Munby,Lord Justice Toulson,Lord Justice Pill |
| Judgment Date | 19 November 2012 |
| Neutral Citation | [2012] EWCA Civ 1500 |
| Docket Number | Case No: B4/2012/2092 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 November 2012 |
[2012] EWCA Civ 1500
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Mr Justice Peter Jackson
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Lord Justice Toulson
and
Lord Justice Munby
Case No: B4/2012/2092
Ms Lorna Meyer QC for the children's guardian
Mr Charles Geekie QC for the local authority
Hearing date : 2 October 2012
This is an appeal, pursuant to permission granted by Ward LJ on 31 August 2012, from an order made by Peter Jackson J following a judgment he delivered on 19 July 2012. The order is dated 24 July 2012 and was sealed on 9 August 2012. The judge had been exercising the inherent jurisdiction of the court in relation to children.
Appropriately, and for reasons that will shortly become apparent, Peter Jackson J's judgment has not been published. Nor, given our decision, is it likely to be. For the same reasons it is necessary for me to be very economical in my summary of the facts.
The background facts
A parent was convicted in the Crown Court of a serious offence relating to one of the children of the family, who I shall refer to as X. The trial received extensive coverage in the local media. The parent was named. The parent's address was given. The fact that there were other siblings was reported, as also their number. None of this, I should emphasise, was unlawful. The Crown Court had not imposed any reporting restrictions and it is not suggested that anything was published in breach of any other applicable restriction.
In the wake of the Crown Court proceedings two things happened.
One was the undertaking by the local authority's Safeguarding Children Board of a Serious Case Review in accordance with the provisions of the Children Act 2004 and The Local Safeguarding Children Boards (Wales) Regulations 2006, 2006 No 1705 (W 167). Those Regulations, as we will see, require the Board to produce what is called an "overview report" and also an anonymised summary of the overview report. The relevant Guidance (see further below) provides that the Board should also "arrange for an anonymised executive summary to be prepared, to be made publicly available at the principle [sic] offices of the Board". The Board prepared a draft Executive Summary. Two features of this draft lie at the heart of the issues canvassed before us. First, reference was made to the proceedings in the Crown Court in such a way as would enable many readers to recognise immediately which family was being referred to and would enable anyone else so inclined to obtain that information by only a few minutes searching of the Internet. Second, it referred, and in some detail, to the fact, which had not emerged during the proceedings in the Crown Court and which is not in the public domain, that another child in the family, who I will refer to as Y, had also been the victim of parental abuse.
The other thing was the grant by Bodey J, sitting in the Family Division, of a reporting restriction order. It was in what can properly be described as the usual form and had the effect of preventing publication of the Executive Summary.
When the matter came before Peter Jackson J on 19 July 2012 he had evidence in the form of a witness statement from A, who is the local authority's Corporate Director of Social Services and also Chair of the Board. It is A's decision as to whether or not to publish the Executive Summary. A took as the starting point this proposition:
"The Executive Summary primarily relates to the life of X. However, the Executive Summary does provide information of the injuries sustained by Y … Even in anonymised format, I accept that without any difficulty families within the same community as the … children would easily be able to establish that it was Y who suffered those injuries".
A then turned to explain the local authority's position:
"I have carefully considered whether in such exceptional circumstances it can be justified not to publish the Executive Summary. As Chair for SCB, I recognise the need for the Executive Summary to be published for the important lessons to be learnt and recommendations to be put in place following conclusion of the review. Also, as Corporate Director for … Social Services I consider it is essential that the Local Authority is transparent and informs the community of what went wrong in this case … It is important for the families we work with and the wider community to feel safe and protected where the issue of children's welfare and safety is concerned.
Publishing the Executive Summary will mean the family will be easily identified within the community … I am acutely mindful that it would cause further distress for Y should Y's local community and Y's peers become aware of what happened to Y … It is in the future welfare interests of the children to protect them from intrusion and to be provided information about recent incidents only from family members. The children are currently emotionally vulnerable … The publication of the Executive Summary will no doubt attract media attention and information in the public domain will spread and potentially be repeated back to the children."
A recognised that the local authority was under a duty to protect the Article 8 rights of the children and act in their best interests. A had taken into account the relevant Regulations and Guidance. A's decision was explained as follows:
"In reaching my decision to seek variation of the Reporting Restriction Order to enable the SCB to publish the Executive Summary I have given careful consideration to the welfare of [the children]. I have also deliberated on the importance of publication for future safeguarding children arrangements across those agencies that have a statutory responsibility to safeguard and protect children and young people."
The local authority accordingly applied to Peter Jackson J for a variation of the reporting restriction order to permit publication of the Executive Summary but, as proposed by A, with the redaction of the number, gender and ages of the children.
Before Peter Jackson J the local authority was represented by counsel, each parent and the children's guardian by leading counsel. Various media organisations were represented by counsel who, although not present, had filed written representations. The parents and the children opposed publication of the Executive Summary in any form. The media sought a relaxation of the reporting restriction order to permit publication.
The statutory framework
It is convenient at this point, and before turning to Peter Jackson J's judgment, to explain the relevant statutory framework.
Local Safeguarding Children's Boards in Wales and in England are governed by separate statutory regimes. In Wales the relevant provisions are sections 31–34 of the Children Act 2004; the corresponding provisions in England are sections 13–16. Section 32 (corresponding to section 14) provides that:
"(1) The objective of a Local Safeguarding Children Board established under section 31 is—
(a) to co-ordinate what is done by each person or body represented on the Board for the purposes of safeguarding and promoting the welfare of children in the area of the authority by which it is established; and
(b) to ensure the effectiveness of what is done by each such person or body for those purposes.
(2) A Local Safeguarding Children Board established under section 31 is to have such functions in relation to its objective as the Assembly may by regulations prescribe (which may in particular include functions of review or investigation).
(3) The Assembly may by regulations make provision as to the procedures to be followed by a Local Safeguarding Children Board established under section 31."
Section 34(2), as amended, provides that:
"A local authority in Wales and each of their Board partners must, in exercising their functions relating to a Local Safeguarding Children Board, have regard to any guidance given to them for the purpose by the Assembly."
The corresponding English provision is in section 16(2).
The relevant regulations are The Local Safeguarding Children Boards (Wales) Regulations 2006, 2006 No 1705 (W 167); the corresponding English regulations are The Local Safeguarding Children Boards Regulations 2006, 2006 No 90. Regulation 4 provides, so far as material, as follows:
"(1) A Board must undertake a review (a "serious case review") in accordance with this regulation in any of the following cases where, within the area of the Board, abuse or neglect of a child is known or suspected, and—
(a) a child has died, or
(b) has sustained a potentially life-threatening injury, or
(c) has sustained serious and permanent impairment of health or development.
…
(3) The purpose of a serious case review is to identify steps that might be taken to prevent a similar death or harm occurring.
(4) In carrying out a serious case review, a Board must—
(a) ask each representative body to provide the Board with a written report of its involvement with the child who is the subject of the review, unless the Board is of the opinion that such a report is unnecessary in the circumstances;
(b) following receipt of each report referred to in sub-paragraph (a), produce a written report (referred to in these Regulations as an "overview report") that—
(i) identifies steps to be taken to reduce the risk of a similar death or harm occurring; and
(ii) recommends the time by which, and identifies the persons by whom, those steps should be performed;
(c) produce an anonymised summary of each overview...
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