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Emily Boardman

Transparency in the family courts and a trip to the Court of Appeal

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Lawyers like the Court of Appeal. The Judges are experienced, engaged, always ask insightful questions and keep the advocates on their toes. The building (The Royal Courts of Justice) is beautiful, imposing, full of history and visiting it feels like doing ‘proper law’. 

So when I was contacted a few weeks ago by Louise Tickle, a freelance journalist, to ask me to assist the mother in Louise’s appeal against a reporting restriction made in a family case, I readily agreed. 

The history to the case is that the mother has been involved in four sets of family proceedings since 2012. 

The proceedings started when she used an epi-pen on her child twice in a number of months because she believed the child had stopped breathing. After the second occasion the hospital reached the conclusion that she was inducing her child’s illness (what used to be called Munchausen’s by proxy) and her child was at risk. The police removed her child and then Southampton City Council applied for an Interim Care Order and approval of their plan to place the child in foster care. She remained in foster care for more than three years. 

The first set of proceedings ended with a Care Order being made with a plan for the child to return to the father. This very quickly failed and the local authority considered a return to the mother, but also discounted that as they felt she was still too great a risk and they were concerned about her immigration status. 

Seven months after the conclusion of the first case the Mother applied to discharge the Care Order on the basis that her circumstances had changed considerably. She had married a British man who, it would seem, the local authority had no concerns about and she was taking steps to regulate her immigration status as a spouse. This was insufficient for the local authority who then applied for a Placement Order (an Order allowing them to place the child for adoption). The Judge made the Placement Order. His Judgment will be published soon and everyone reading it will be able to form their own opinion of the strength of the evidence against the mother. 

What I think is important to remember when the Judgment is read is that the Judge (HHJ Hess) is describing a mother who has been dealing with social services for two years by that point and, it is fair to say, she does not feel as though she has been treated fairly. 

It is also important to realise that these second proceedings were privately funded by the mother. Legal aid is available automatically to a parent where the local authority makes the application for a Care Order (as in the first proceedings) but when it is a parent applying to get their child back from care it becomes means and merits tested. This means the solicitors must assess the chances of success to be sufficiently high, under the legal aid agency’s guidelines, to merit legal aid, but also that the parent must be poor enough to be eligible financially. This mother was not quite poor enough as her new husband was working. So these proceedings that ended with an Order that her child could be placed for adoption cost her about £20k. 

Amazingly the mother collected herself and mounted an appeal against this Order made by HHJ Hess. This third case was again privately funded and ended up in the Court of Appeal in January 2018, seven months after the Order of HHJ Hess. 

The Court of Appeal Judgment is already published at: Re M (a child) [2018] EWCA Civ 240and it was allowed. The Court of Appeal agreed that the Judge made mistakes and the case should be reheard. Their view was that the Judge had failed to adequately analyse the risk to the child of physical harm and had based his decision on ‘the slimmest of evidence’. In terms of emotional harm the Judge had largely relied on evidence from someone who had met the mother just once. 

The Court of Appeal also agreed that the Judge had failed to carry out a proper balancing act when considering why adoption was better than other options. 

The Court of Appeal also considered the issue of costs – should the mother get her costs of the appeal repaid by the Local Authority? They decided not. The reason for this was that they decided the Local Authority behaved reasonably in defending the appeal as the original decision had been in line with all professional opinion and supported by the Guardian. 

So, the case was sent back to the lower court to be reheard and that started proceedings number four. This is the rehearing of the mother’s application to discharge the Care Order and the local authority’s application for a Placement Order. And again, mother is still not eligible for legal aid. 

These fourth proceedings took eleven months but during that time the mother had another baby (who the local authority did not seek to remove) and the older child was returned home. As I did not represent the mother in any of first four sets of proceedings, and there is no Judgment setting out why the child could return home, it is hard to know what had changed. However, the proceedings concluded with the local authority withdrawing their application to place the child for adoption and with the Care Order being discharged. 

The child ended up spending more than three years in foster care and the mother spent more than £60k on legal fees and it is frustrating not to know what very significant changes the local authority and the Guardian must have felt had been made in the year between the making of the Placement Order, their defence of the appeal and the return of the child home. 

And so we get to the point of this appeal. 

At the final hearing of the fourth proceedings three journalists attended court and told the Judge they wanted to write about this case but the Judge said no and did not deal with their applications appropriately. Perhaps he and the lawyers present did not know what they were supposed to do when faced with journalists (many of us do not really know) perhaps he did not have time, perhaps he thought their applications were inappropriate. We do not really know. However, what he did was make an Order that restricted them from even reporting what was already public – the Court of Appeal Judgement – which is clearly wrong. 

Why were the journalists interested in this case? A piece of research had been done that highlighted that Southampton City Council places a disproportionately high number of children for adoption at the conclusion of care proceedings. They defended this finding by saying that their proposal to place children for adoption was always scrutinised carefully by professionals and judges. So then the journalists who were aware of this research started to look at reported Southampton cases and they found this one.

Louise Tickle was one of the three journalists who made that application and she decided to appeal the decision to place reporting restrictions on this case. She did not have the financial backing of any news organisation and she crowdfunded the application fees. She obtained permission to appeal and then gathered the legal teams for a hearing last Friday (15 February 2019). She had the benefit of pro bono (free) representation by Simons, Muirhead & Burton, Sarah Phillimore (a junior barrister at St John’s Chambers) and Paul Bowen QC (at Brick Court Chambers). Lawrence Messling (at 3PB Chambers) and I represented the mother, also pro bono. The Guardian was unable to obtain funding or pro bono representation but her pervious solicitors advised her and wrote to the court on her behalf. The local authority sent a barrister and the BBC applied to join the appeal and sent a barrister too. 

The Court of Appeal on Friday approved Louise’s appeal and agreed to a new Reporting Restrictions Order (RRO) that had been designed by the various lawyers involved. A RRO is a very useful Order that sets out very clearly what can and what cannot be reported about a case. In family cases it remains good law that the child should not ever be identified, directly or indirectly. This usually means the parents and other family members should not be identified either. And sometimes it means that other facts cannot be reported if they are unusual enough to mean the family (child) can be identified. 

Perhaps more significantly, Sir Andrew McFarlane (The President of the Family Division) was one of the Judges hearing the appeal and he agreed that he felt clearer guidance was necessary for journalists, judges and practitioners in the family court on when cases can be written about, and what details can be publicised. He agreed to set out that guidance. 

Following Friday’s appeal this case can now be written about. The BBC, The Guardian and The Times newspapers have already written about it and there will be more articles to come. 

The issue of transparency in family cases will not be resolved with this one case but it is a start, and it should lead to more useful guidance.  

Emily Boardman
Boardman, Hawkins & Osborne
18 February 2019 

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