This is part two of the public children law update blog to give readers a snapshot of the important cases, issues and developments from May 2016 to August 2016. The remaining topic to be covered from part one, is that of transparency. Other interesting cases of note will also be covered. Please feel free to submit a comment below or send us an Ask query if you have any views on the cases, issues, or legal developments that are covered or if you think we have missed something that should be brought to the attention of child care law practitioners.
Transparency of judgments
The amount of detail that judgments should provide has been the subject of consultation and draft guidance over the past year. The balance to be struck between transparency and the need to preserve children’s privacy remains difficult. The cases indicate that a decision on whether to publish and what to publish will remain fact specific.
Allow publishing of fact-finding judgment if criminal appeal and retrial is speculative possibility (Re C (A Child))
The Court of Appeal allowed the appeal of Pauffley J’s judgment (London Borough of Sutton v Gray and Others v Guardian News and Media Limited [2016] EWHC 1608 Fam). Pauffley J refused a joint application by the media to publish the fact-finding judgment regarding Ellie Butler’s death. The application was made following the parents’ convictions. While the criminal investigations and prosecution were ongoing, reporting restriction orders were made.
Pauffley J’s refusal was based on her analysis of the effect of publishing on a prospective appeal of the criminal conviction and any retrial following a successful appeal. She considered that the parents could not have a fair trial if the judgment was published. While she appreciated that there was a fade factor to news stories, the internet made it more likely that people could recall the story for longer. Although jurors should be trusted to give a defendant a fair trial, this could prejudice and derail the criminal process.
Dyson MR disagreed with Pauffley J’s conclusion. Whether the judgment should be published, is a decision based on a risk assessment about the likelihood of a retrial. This required the court to assess the likelihood of a successful appeal. The lower the likelihood of further criminal proceedings, the greater the justification for the judgment to be published, as the risk of unfairness to a retrial is lower. Prejudicial pre-trial publicity can be managed. He assessed that a criminal retrial was a speculative possibility and therefore allowed the judgment to be published with redactions.
Anonymisation of open court judgment is justified if it is detrimental to the child (Re X (A Child) (No 2))
When a judgment is handed down in open court, it will not be a contempt of court to use any names and details in the judgment. If anonymisation is required, a reporting restriction order should be applied for. While media organisations will usually agree that the names and details of children and adopters should be anonymised and protected, they have opposed giving such protection to the details of parents in cases concerning non-accidental injury.
In this case, the child was adopted after care proceedings in which findings were made against the birth parents. Criminal proceedings ended with the birth parents being acquitted with no case to answer. This led to the birth parents’ successful application for a re-hearing of the fact-finding in the care proceedings (Re X (A child) [2016] EWHC 1342 (Fam)). The judgment allowing the re-hearing was handed down in open court and the parents’ details were not anonymised. The information was published in a legal blog and the local authority applied for a reporting restriction order to have the birth parents’ details anonymised, as well as those for the child and the adoptive parents.
The main consideration for the court was whether anonymisation was required to protect the child from the direct and indirect effects of the publicity. Anonymisation could still be justified even if the information has been in the public domain. The reporting restriction order was made.
The judgment highlighted the importance of giving the media proper notice of an application for a reporting restriction order and that sufficient information must be given, so that the media know which child and judgment the application is concerned with. Munby P also reminds practitioners that requests to take down a judgment or requests for further anonymisation must be made to the judge responsible for the judgment.
Other cases of interest
The courts have in this quarter, clarified, muddied and extended the law. However, all these developments assist local authorities (LAs) and should be noted.
Young people have no choice about section 20 accommodation if welfare will be seriously prejudiced without (Re W (A Child))
A 17 year-old girl (W) appealed the making of a secure accommodation order (section 25, Children Act 1989 (CA 1989)) on the grounds that she had not consented to being accommodated under section 20 of CA 1989 and being placed in secure accommodation. W was sexually exploited, took illicit drugs, drank alcohol to excess and exhibited disruptive, uninhibited behaviour.
A LA can accommodate a young person under section 20 of CA 1989 under either section 20(3) or 20(5). The Court of Appeal clarified that under section 20(3), there was an obligation on the LA to accommodate if the young person’s welfare would otherwise be seriously prejudiced. Section 20(5) provides to the LA discretion to accommodate if doing so would safeguard and promote the young person’s welfare. The implication is that one is to address more urgent safety needs and the other is to support needs.
The Court of Appeal concluded that W was accommodated under section 20(5). While the LA should consider W’s wishes and feelings, these are not decisive if it accommodated her under section 20(5). There is also no requirement for a young person to consent to secure accommodation. It would be rare for a young person to agree to their liberty being restricted.
The judgment also clarified the meaning of “abscond” under section 25(1)(a) of CA 1989. This does not include scenarios where the young person is deliberately absenting themselves for a few hours and returns to the placement. LAs must bring their cases under section 25(1)(b) that the young person would be in danger of serious harm.
Extensions of a supervision order can be made after the order has expired (A Local Authority v D and others)
Mostyn J allowed the extension of a supervision order which expired some months before the application for extension was issued. He justified his diversion from previous case law, stating that the extra time should be allowed for LAs to monitor a child’s progress before making an extension application. Parents should be made aware that there is a statutory limit of three years to a supervision order. He considered that there would be no breach of the family’s human rights.
This approach is hard to resolve with the well-established case law that once a supervision order expires, the LA must make a new application for a supervision order and re-establish that the threshold criteria are met. This interpretation is contradictory. One statutory limit is respected (maximum three years) while another is not (12-month expiry). This difference will be difficult to explain to parents, but is helpful to LAs in cases that genuinely require a monitoring period beyond the 12 months of the supervision order. However, there is no real reason why an extension of a shorter length is not applied for if a monitoring period is required.
Offensive forenames can be stopped from registration (Re C (children))
A mother was prevented from registering her newborn twins’ names as Preacher and Cyanide. The LA issued an application to invoke the inherent jurisdiction after social workers were unable to persuade the mother that these names were inappropriate. The children’s older half siblings were in long-term foster care due to the mother’s mental health difficulties. They knew about their new siblings and chose alternative names for them. The care plan for the twins was to have them placed in the same placement as their older half siblings.
The Court of Appeal clarified that a LA sharing PR under an interim care order could stop a parent from registering a birth. However, a child’s forename has lifelong consequences for a child and preventing a registration is a serious interference of a parent’s Article 8 rights. It is therefore appropriate for the LA to apply to invoke the inherent jurisdiction of the High Court for a declaration to endorse the action.
The twins were given the names chosen by their half siblings.