Publicity in the Court of Protection

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PUBLICITY IN THE COURT OF PROTECTION
Fenella Morris QC and Mungo Wenban-Smith, Thirty Nine Essex Street Chambers
Introduction
1. We all recognise the general desirability of openness and transparency in the administration of justice. Whereas in civil and criminal proceedings, there are occasions when anonymity is practised, they are few and far between. By contrast, the presumption has been reversed in the Court of Protection (“COP”) proceedings.
2. There is a widespread perception among the public – encouraged by the media - that COP proceedings conducted in secret enables injustices to be perpetrated behind closed doors and without legitimate scrutiny. It is argued that it permits social workers, judges and all those engaged in the process to proceed in an autocratic and unprincipled fashion, riding roughshod over the individuals’ ECHR Article 8 rights. Even if not rooted in fact, this perception alone has done real reputational damage to the court and dents confidence in the fair administration of justice. It has encouraged a long line of lurid headlines, e.g. “The secret court of living hell” (Daily Mail, 31 October 2009). In addition, there is undoubtedly a legitimate public interest in learning about the practice and exercise of the COP’s significant powers, which we must not forget extend to authorising physical force and deprivations of liberty and matters of life and death, whether it be enforced abortions or the withdrawal of medical treatment.
3. But also vitally important is the need to protect the privacy of the vulnerable adults who are the subject of proceedings in the COP. Their intimate private affairs – whether it be their finances, residence, care or medical treatment - are frequently not being discussed in the courts at their own instigation or with their consent and sometimes without their knowledge. Many consider that any publicity involving the affairs of disabled adults is unwarranted and can legitimately point to much reporting by the popular media that is unashamedly sensationalist, preoccupied with names and salacious details rather than the true issues at stake. Put bluntly, it is argued that these individuals and their families are entitled to privacy when forced to litigate about the
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intimate detail of their lives. As I have previously remarked elsewhere1, by analogy a journalist cannot simply walk into a hospital and request access to a person’s medical records on the basis that the actions of doctors towards incapacitous adults should be open to public scrutiny. That type of information is usually kept private unless the invididual consents to its disclosure.
4. The burning issue for some time has been whether it is possible to reconcile these two worthwhile objectives, which must co-exist in dynamic tension with one another, and if so what form a workable solution might take.
5. In 2013, against the backdrop of a media clamour for reform, the pendulum has undoubtedly shifted rapidly towards greater transparency and openness. This is therefore an opportune moment to chart the progression of the law in this area, to take stock of the position we have now reached and consider what might come next.
The traditional stance
6. Albeit in rather dated language, the speech of the Lord Chancellor, Viscount Haldane, 100 years ago in Scott v Scott [1913] AC 417 at 437, provides a clear exposition of the longstanding justifications advanced in defence of proceedings relating to incapacitated adults being an exception to the general position that justice is and should normally be exercised in public:
“...The case of wards of Court and lunatics stands on a different footing. There the judge who is administering their affairs, in the exercise of what has been called a paternal jurisdiction ... is not sitting merely to decide a contested question. His position as an administrator as well as judge may require the application of another and overriding principle to regulate his procedure in the interest of those whose affairs are in his charge...While the broad principle is that the Courts of this country must, as between parties, administer justice in public, this principle is subject to apparent exceptions, such as those to which I have referred. But the exceptions are themselves the outcome of a yet more fundamental principle that the chief object of Courts of justice must be to secure that justice is done. In the two cases of wards of Court and of lunatics the Court is really sitting primarily to guard the interests of the ward or the lunatic. Its jurisdiction is in this respect parental and administrative, and the disposal of controverted
1 Private Client Adviser, 16th February 2012
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questions is an incident only in the jurisdiction. It may often be necessary, in order to attain its primary object, that the Court should exclude the public. The broad principle which ordinarily governs it therefore yields to the paramount duty, which is the care of the ward or the lunatic...As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield.”
Court of Protection Rules
7. When the Mental Capacity Act 2005 (“MCA”) brought the COP into being in October 2007, section 51(2)(h) of the MCA provided that rules could make provision for enabling or requiring proceedings to be conducted in private or for enabling the court to determine who is it to be admitted when the court sits in private. Part 13 of the Court of Protection Rules SI 2007/1744 (“COPR”) did so by providing that in COP proceedings the general rule would be that “a hearing is to be held in private”: see COPR rule 90(1), thereby re-articulating the longstanding common law exception to the principle that justice must be done in open court.
8. The judge has a broad discretion, however, in respect of a private hearing, under COPR rule 90(3), to authorise any person, or class of person, to attend the hearing or part of it and a further broad discretion in relation to the publication of information relating the proceedings. COPR rule 91(2)-(3) provides as follows:
“(2)The court may make an order authorising-
(a) the publication of such information relating to the proceedings as it may specify; or
(b) the publication of the text or a summary of the whole or part of a judgment or order made by the court.
(3) Where the court makes an order under paragraph (2) it may do so on such terms as it thinks fit, and in particular may—
(a) impose restrictions on the publication of the identity of—
(i) any party;
(ii) P (whether or not a party);
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(iii) any witness; or
(iv) any other person;
(b) prohibit the publication of any information that may lead to any such person being identified;
(c) prohibit the further publication of any information relating to the proceedings from such date as the court may specify; o
(d) impose such other restrictions on the publication of information relating to the proceedings as the court may specify.”
9. In addition, by COPR rule 92, the court may make an order for a hearing, or part of a hearing, to be held in public. By rule 92(2), the court has identical powers to control publication of information relating to hearings in public as those set out in rule 91(3) above.
10. By COPR rule 93, the court is only to make an order under COPR rules 90-92 “where it appears to the court that there is a good reason for making the order”. It can do so either on its own initiative or on an application made by any person.
11. COPR rule 93(2) provides that a practice direction may make further provision in connection with private and public hearings and the publication of any information. This takes the form of Practice Direction 13A, paragraph 27 of which states that the aim of any orders made under COPR rules 90-92 should be to protect P, the incapacitated adult, rather than to confer anonymity on other individuals or organisations. However, it further provides:
“...the order may include restrictions on identifying or approaching specified family members, carers, doctors or organisations or other persons as the court directs in cases where the absence of such restriction is likely to prejudice their ability to care for P, or where identification of such persons might lead to identification of P and defeat the purpose of the order. In cases where the court receives expert evidence the identity of the experts (as opposed to treating clinicians) is not normally subject to restriction, unless evidence in support is provided for such a restriction.”
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12. In relation to hearings in which applications for committal for contempt are determined, COPR rule 188(2) reverses the general rule (COPR Rule 90) that hearings are to be in private. Instead, it provides that the court will hold such hearings in public “unless it directs otherwise”. In addition, rule 188(3) provides that:
“If the court hearing an application in private decides that a person has committed a contempt of court, it shall state publicly –
(a) the name of that person;
(b) in general terms the nature of the contempt in respect of which the order of committal is being made; and
(c) any punishment imposed.”
Key cases developing these statutory rules
12. It is worth charting the key judicial milestones that have grappled with these rules, which illuminate the current discussion around further reforms.
13. The starting point is A (By his litigation friend, the Official Solicitor) v. Independent News and Media Ltd & others [2010] EWCA Civ 343, which concerned an application by the parents and sister of A, a severely disabled young man with a precocious musical talent, later identified as Mr Paravicini, who sought an order from the COP that they be appointed to act as his deputies in respect of his property and affairs, health and welfare. The media applied for authorisation to attend the hearings with a view to making informed submissions in due course as to what they may seek to publish. In dismissing an appeal against Hedley J’s order that the media be entitled to attend the hearings, a very strong Court of Appeal (Lord Judge LCJ, Lord Neuberger MR and Sir Mark Potter P) provided authoritative guidance on the interpretation of COPR rules 90-93, which rules were held to be clear and compliant with ECHR articles 6, 8 and 10. In particular:
(1) While hearings will normally be in private, the court is vested with a permissive power to enable anyone, or any class of people, including
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representatives of the media, to be present at the hearing. Similarly, any class of people may apply for the court to authorise publication relating to the proceedings including the hearing itself (see para 10);
(2) No such order may be made unless there is “good reason” for making it. These words were held to “mean what, taken together, they say” and are not to be re-written as a “presumption” or “starting point” (see para 11)
(3) The court should approach the question in two stages:
(a) First decide if there is good reason for making the order, which for the media will invariably be based on the public interest in imparting and receiving information about the particular case, some of its features, or the functioning of the COP (see para 34); if there is
(b) Go on to decide whether the requisite balancing exercise between A’s right to privacy under ECHR article 8 and the media’s right to freedom of expression under ECHR article 10 justifies the making of such an order. In particular:
“...the reality is that provided good reason appears, the court will then assess all the relevant considerations and make a balanced, fact specific judgment whether the specific authorisation should be granted.” (see para 11);
(4) The court drew a sharp distinction between the respective roles of the judge and the media:
“...the litigation is about A’s interests, and the involvement of his devoted family, and the judge must concentrate on them and he will produce a judgment which reflects his decision about the matters in issue before him. He is not qualified to determine what is or may be of interest to the public: that is the function of the media, not the judiciary. In any event, it would be an inappropriate exercise of a judge’s responsibility if he were to tailor the contents of his judgment to what he believed to be the needs or concerns of the media.” (see para 22);
(5) It noted that this was an ideal COP hearing to enable the media to understand the court’s processes:
“It is valuable for the public to be fully informed of precisely what happens in a court in which the overwhelming majority of hearings are, in accordance with the statutory structure governing its process, to be conducted in private.” (see para 23);
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(6) Before allowing the media to attend a private hearing, the court will give very great weight to the actual or potential invasive or other effect which an order under COPR rule 90(3) might have on the private life of any person who privacy is intended to be protected by rule 90(1) (see para 30).
14. In London Borough of Hillingdon v Neary [2011] EWHC 413 (COP), Peter Jackson J followed A’s case but went further. As is now well known, Neary concerned Steven Neary, a 20 year old man with autistic spectrum disorder and a severe learning disability, who lived with his father. With his father’s consent, he had been placed in local authority residential accommodation for a few days’ respite initially but a dispute then arose between the local authority and his father as to whether it was in his best interests to return home. Steven returned home a year later following court proceedings and further proceedings were listed regarding the lawfulness of that detention. Designated journalists from several media organisations applied for permission to attend COP proceedings and to report such information as the court may, in due course, permit and to name the parties.
15. Peter Jackson J granted the orders sought. While the decision turned on its particular facts, at paras 16-17, Peter Jackson J emphasised the following factors of broad application:
(1) He observed that the affairs of those who are not incapacitated are normally handled privately. It followed that “people should not routinely have their lives exposed to public gaze simply because their affairs come before the court as a result of their incapacity.”
(2) On the other hand, the COPR Part 13 scheme expressly contemplates cases where hearings will not be conducted in private and the rules enable the court to calibrate its powers to the needs of the particular case.
(3) The impact of publicity on P is a highly relevant consideration: “Publicity can have a strong effect on individuals, particularly if they are not used to it, or if, like Steven, they are vulnerable to anxiety and to changes in their environment. Any evidence that suggests a real possibility of a detrimental
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effect from publicity must weigh heavily. On the other hand, there must be some proper factual basis for such concerns.”
(4) He acknowledged a “genuine public interest” in the work of the COP being understood:
“Not only is this healthy in itself – the presence of the media in appropriate cases has a bracing effect on all public servants, whether in the field of social services or the law – but it may also help to dispel misunderstandings. It is not in the interests of individual litigants, or of society at large, for a court that is by definition devoted to the protection of the welfare of disadvantaged people to be characterised (including in a report about this case, published as I write this judgment) as “secretive”. It is part of our natural curiosity to want to know other people's secrets, and using pejorative descriptions of this kind may stimulate interest. The opportunity, in appropriate cases, to follow a process that has welfare, not secrecy, at its heart can only help the media to produce balanced reporting, and not fall back on clichés.”
(5) The ability of the media to participate need not be limited to cases involving extraordinary individuals such as Mr Paravicini because “interesting and potentially important examples can arise wherever decisions have to be taken about people whose lives mirror those of large numbers of others in the same position...the question is not whether the individual is exceptional, but whether the issue is one of genuine public interest.”
(6) He drew a distinction between cases which have not been in the public eye and those which have. In the former and the proceedings are conducted in private, “there may very well be no story”. However, in the latter case, the proceedings do not themselves create the story and so the issue is instead whether the media can follow the continuation of the story in court. He observed that “it is in no one's interests for proceedings to be stultified by the withholding of information that is already in the public domain”, such as in this case where Steven’s circumstances were already widely known.
16. Picking up on the comments of Lord Rodger in Re Guardian News and Media Limited [2010] 2 AC 697, Peter Jackson J recognised that stories about particular individuals are much more attractive to readers than stories about unidentified people, albeit noted the potential for advantage or disadvantage from publication to be magnified by
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the personalisation of the proceedings. In the Guardian case, Lord Rodger eloquently defended the media’s alleged preoccupation with names, in a case in which anonymity orders in respect of several brothers who were identified as suspected terrorists by the Treasury under the Terrorism (United Nations Measures) Order 2006 and Al-Qaida and Taliban (United Nations Measures) Order 2006. Lord Rodger held as follows, at paras 63-64:
“63. What's in a name? “A lot”, the press would answer. This is because stories about particular individuals are simply much more attractive to readers than stories about unidentified people. It is just human nature. And this is why, of course, even when reporting major disasters, journalists usually look for a story about how particular individuals are affected. Writing stories which capture the attention of readers is a matter of reporting technique, and the European court holds that article 10 protects not only the substance of ideas and information but also the form in which they are conveyed...More succinctly, Lord Hoffmann observed in Campbell v MGN Ltd [2004] 2 AC 457 , 474, para 59, “judges are not newspaper editors”...This is not just a matter of deference to editorial independence. The judges are recognising that editors know best how to present material in a way that will interest the readers of their particular publication and so help them to absorb the information. A requirement to report it in some austere, abstract form, devoid of much of its human interest, could well mean that the report would not be read and the information would not be passed on. Ultimately, such an approach could threaten the viability of newspapers and magazines, which can only inform the public if they attract enough readers and make enough money to survive.
64. Lord Steyn put the point succinctly in In re S [2005] 1 AC 593 , 608, para 34, when he stressed the importance of bearing in mind that:
“from a newspaper's point of view a report of a sensational trial without revealing the identity of the defendant would be a very much disembodied trial. If the newspapers choose not to contest such an injunction, they are less likely to give prominence to reports of the trial. Certainly, readers will be less interested and editors will act accordingly. Informed debate about criminal justice will suffer.”
17. Peter Jackson J included a cautionary note that once the cat is out of the bag and the parties' names are publicly attached to the proceedings, the court has lost its ability to control that information. Therefore, he ruled that “parties should not be named at the
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outset where any real possibility can be foreseen of the balance falling the other way at the end of the proceedings.”
18. In A’s case and Neary, the courts had adumbrated a potential solution to the conundrum presented by the desire to administer open justice in the COP, without the openness imperilling the justice. The media could be present in court, but what could ultimately be reported would be a matter for the judge.
19. These principles were advanced further in the case of P v. Independent Print Ltd [2011] EWCA Civ 756. This case concerned a 26 year old man, P, who suffered from severe epilepsy, in which the COP was concerned with P’s living arrangements. P had been adopted by a lady, Mrs AH, who came into conflict with professionals over P’s treatment. Believing that P suffered from ME, Mrs AH had withdrawn P’s medication without medical advice and he had subsequently been admitted to hospital on an emergency basis suffering from prolonged and life-threatening epilepsy. Mrs AH wanted P to return to live with her but Hedley J decided that it was instead in P’s best interests to move to independent living accommodation with limited contact with Mrs AH and for a review to take place a year later. Hedley J’s judgment was delivered in open court with reporting restrictions to preserve anonymity.
20. Two weeks before the review hearing, the Independent sent an email to the COP, attaching an application for permission to attend the hearing and to report it subject to such restrictions as imposed by the court. It failed to attend the court office to issue the application and the COP did not respond. Instead, it decided to hear the Independent’s application immediately prior to the substantive review hearing, in circumstances where both the Independent and the court had failed to notify the other parties of the Independent’s application, who understandably cried ambush. Hedley J determined that while it was clearly unsatisfactory that the application had not been effectively served until the day of the hearing and was critical of the general lack of clear working procedures for the media, it was appropriate to deal with it summarily in order to avoid undue delay.
21. Hedley J applied A’s case and granted permission to the Independent’s journalist to remain in court for the review hearing and to report the decision, subject to
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anonymisation of the parties and the area in which they live. Hedley J ruled that staff caring for P and Mrs AH should take all reasonable steps to ensure that he was not made aware of media reporting and imposed an injunction on Mrs AH to this effect. Hedley J considered the case provided a vivid illustration of, and valuable insight into, the powers of the COP intervening in the common view of a mother and son that they should be allowed to live together in the son’s best interests. The learned judge further noted that:
“...in my experience over my nine year on the High Court bench, whenever journalists have been permitted to attend court, the ultimate reporting has always been fair, accurate and impartial and I personally am impressed by an argument which says that it is much more likely to be that if the journalist has listened to the proceedings than if the journalist is dependent on other sources of information particularly if the other sources of information have an interest in the proceedings and a limited perception of the true breadth of the issues being considered by the court.”
22. Following publication of an account of the hearing described by the Court of Appeal as “wholly unexceptionable”, it dismissed the appeal by the Official Solicitor and endorsed Hedley’s J’s application of the two-stage process following A’s case as unimpeachable. In so doing, the court rejected the Official Solicitor’s argument that if permission were granted in an unexceptional case such as this, it would risk opening the floodgates. It also concluded that, on the facts, media attention would not undermine therapeutic work received by P given that Hedley J availed himself of the anonymity powers under COPR rule 91(3) and had imposed an injunction on Mrs AH.
23. The court further ruled that here was no requirement that the determination of an application for media attendance under COPR rules 90-93 must be dictated by the best interests of P, as section 1(5) of the MCA did not govern such applications. At para 49, the court concluded that “welfare is not the paramount consideration trumping all other considerations”. Instead it was a material factor, the weight to which would be accorded depending on the circumstances of the case. The court expressly declined an invitation to lay down rules for the proper way in which the media should make similar applications in the future.
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24. In Re M (A Patient) (Court of Protection: reporting restrictions) [2011] EWHC 1197 (Fam) the Court was concerned with the different factual scenario of a proposal to withdraw artificial nutrition and hydration from a minimally conscious patient who had suffered brain stem encephalitis, which had a devastating impact on her family. In such serious medical treatment cases, COP Practice Direction 9E provides at para 16 that, “the court will ordinarily make an order pursuant to rule 92 that any hearing shall be held in public, with restrictions to be imposed in relation to publication of information about the proceedings”.
25. In these types of case, in determining any application for an order that restricts the publication of information, the court must conduct the classic balancing exercise between ECHR articles 8 and 10, applying the four propositions set out by Lord Steyn in Re S (A Child) (Identification: Restriction on Publication) [2004] UKHL 47, [2005] 1 AC 593, namely:
“First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test.”
26. Baker J had previously ruled that all future hearings should be held in open court but subject to reporting restrictions. The media challenged the scope of an interim order that precluded publication of any information likely to lead to identification of the patient, her family and care staff and restrained the media from contacting or communicating with 65 named individuals. Baker J concluded that the balance manifestly fell in favour of properly protecting the ECHR article 6 and 8 rights of the patient and her family and restricting the media's article 10 freedom of expression. His order prohibited, pursuant to COPR rule 92(2), the publishing of any information likely to lead to the identification of the patient, any person a party to the proceedings, any witness other than an expert witness, any past or present treating health care professional or member of the patient's care team, and the care home where the patient resided, and prohibiting those bound by the order from communicating with the patient and certain members of the family unless invited by their respective
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solicitors to do so, or from approaching the patient or the care home for the purpose of seeking information about the patient or the proceedings.
27. The following useful points of general application emerge from Baker J’s judgment in Re M:
(1) ECHR article 6 rights may be engaged in addition to articles 8 and 10 where it is asserted that publication of information relating to proceedings, or attempts by the media to contact litigants, may affect the capacity or willingness of a party to participate in the litigation (para 38);
(2) The balancing exercise that has to be undertaken in deciding whether or not to allow publication may, in appropriate circumstances, includes consideration of the article 8 rights of family members as well as P (para 39);
(3) When examining the article 8 rights of P and others, the court should consider the nature and strength of the evidence of the risk of harm as there must be a sound factual basis for such concerns (para 40);
(4) While there may be exceptions, the public interest in freedom of expression arising in serious medical cases will usually lie in the general issues and possibility of an order being made that might have the effect of leading, directly or indirectly, to the shortening of the life of an incapacitated adult, rather than with the identity and personal circumstances of P (para 41);
(5) Baker J warned judges and practitioners in the COP to be “on their guard to ensure that their naturally protective instincts, developed through years of giving paramount consideration to the welfare of children and the best interests of vulnerable adults, do not lead them to underestimate the importance of article 10 when carrying out the balancing exercise” (para 43);
(6) Baker J was of the view that decisions in the super-injunction cases in the Queen's Bench Division, in which celebrities and others seek to restrain publication concerning their private lives, are unlikely to be of any relevance to decisions in the Court of Protection or vice versa (para 44).
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Recent Developments
28. The law relating to publicity in the COP remained fairly stable following these cases until earlier this year when Sir James Munby was appointed President of the Court of Protection and President of the Family Division. Customarily, he has injected real dynamism and urgency into making the COP more transparent.
29. The first major impetus to change appears to have been the uproar caused by media reports (“Agony of woman locked up for six weeks by secret court just for trying to get her Dad out of care home”, Daily Mail, 25 April 2013) of Wanda Maddocks being sentenced to a term of imprisonment for contempt of court having wilfully breached several court orders prohibiting her from removing her father from a care home at a hearing at which she was neither present nor represented and in respect no public judgment was available for several months. In response, on 3 May 2013, the LCJ and Sir James Munby issued Committal for Contempt of Court – Practice Guidance [2013] 1 WLR 1316. It provides that:
(1) The discretionary power to hear a committal application in private in COPR rule 188(2) “should be exercised only in exceptional cases where it is necessary in the interests of justice”;
(2) “The fact that the hearing of the committal application may involve the disclosure of material which ought not to be published does not of itself justify hearing the application in private if such publication can be restrained by an appropriate order”;
(3) It emphasises that where, exceptionally, a committal application is heard in private, there are no exceptions to the requirement in COPR rule 188(3) that the name, general nature of the contempt and the punishment being imposed must be publicly stated;
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(4) Committal application in the COP should at the outset be listed and heard in public. If the court decides to sit in private, before doing so, the judge should give a judgment in public setting out the reasons for doing so;
(5) Where a committal order or suspended committal order is made, the judge should take appropriate steps to ensure that as soon as reasonably practicable a transcript is prepared at public expense of the judgment, that it is published on the BAILII website, and a copy is made available to anyone who requests it upon payment of any appropriate charge.
30. This was followed by supplemental Committal for Contempt of Court Practice Guidance issued on 4 June 2013. It stipulates how applications for contempt should be shown in the public court list. It further provides that, in the absence of exceptional circumstances, the court should make a copy of the application notice seeking a person’s committal available to anyone who requests it upon payment of any appropriate charge. If the court decides that there are exceptional circumstances such that a copy of the application notice is not to be made available, the judge must set out in writing the reasons for coming to that decision. Finally, it directs that at any public committal hearings in the COP, the judge and advocates should be robed.
31. Then, on 12 July 2013, Sir James Munby issued draft practice guidance entitled Transparency in the Family Courts and the Court of Protection – Publication of Judgments – Draft Practice Guidance, for comment and discussion. It expressly intends “to bring about an immediate and significant change in practice” regarding the publication of judgments in the COP and is to be followed by further guidance, more formal Practice Directions and changes to the COPR in due course, although it does not envisage changes to primary legislation in the near future. It intends to take immediate effect in relation to all COP judgments delivered by Circuit Judges, High Court Judges and persons sitting as Judges of the High Court (so excludes at present proceedings before district judges). Its key provisions are worth setting out in full:
“16. In cases ...involving the personal welfare jurisdiction of either the High Court or the Court of Protection, where the judgment relates to the making or refusal of:
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...
(ii) any order authorising a change of the placement of an adult from one with a family member to a home;
(iii) any order arguably involving a deprivation of liberty;
(iv) any order involving the giving or withholding of significant medical treatment; or
(v) any order involving a restraint on publication of information relating to the proceedings,
the starting point from now on is that the judgment should be published unless there are compelling reasons why it should not.
17. In all other cases heard in the...Court of Protection by Circuit Judges, High Court judges and persons sitting as judges of the High Court, the starting point from now on is that a judgment (where available) may be published whenever a party or an accredited member of the media applies for an order permitting publication, and the judge concludes that the judgment may be published taking account of the rights arising under any relevant provision of the European Convention on Human Rights, including Articles 6 (right to a fair hearing), 8 (respect for private and family life) and 10 (freedom of expression).
18. A judgment should in any event be published whenever the court considers that publication is in the public interest, whether or not a request is made by a party or the media.
19. When considering in accordance with paragraphs 16 or 17 whether a judgment should be published, either at the time the judgment is delivered or on subsequent request, the judge should address the following questions whether or not anyone has raised them:
(i) (in the case of an extempore judgment) whether the judgment should be ordered to be transcribed, and if so how the cost of transcription should be met;
(ii) (in cases where a reserved judgment has been handed down or an extempore judgment is to be transcribed):
a. whether the judgment may be published;
b. the extent of any anonymisation;
c. the identity of the person(s) to be responsible for carrying out such anonymisation; and
d. the form of the rubric on the front page of the judgment.
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20. Before making a decision on these matters, the judge should invite representations from the parties and, if present, any accredited members of the media. The decision of the judge on each of these matters should be set out in the order and if the decision is that the judgment may not be published or should be anonymised the reasons should be set out in the judgment.
21. In all cases where a judge authorises publication of a judgment:
(i) public authorities and expert witnesses should be named in the judgment as published, unless there are compelling reasons not to;
(ii) anonymity in the judgment as published should not extend beyond protecting the privacy of the families involved, unless there are good reasons to do so.
22. Where a judgment to which paragraph 16 applies is approved for publication it shall as soon as reasonably practicable be placed by the court on the BAILII website by sending it to [email protected].
23. Where a judgment to which paragraph 17 applies is approved for publication it shall be made available, upon payment of any appropriate charge that may be required, to any person who requests a copy.
24. Every judgment referred to in paragraphs 22 and 23 shall, unless it contains an express statement to the contrary, be deemed to contain a rubric in the following terms:
“This judgment was delivered in private. The judge has given leave for it to be reported on the strict understanding that (irrespective of what is contained in the judgment) in any report no person other than the advocates or the solicitors instructing them may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.”
All persons, including representatives of the media, must ensure that this requirement is strictly complied with. Failure to do so will be a contempt of court...”
Where next?
32. On 5 September 2013, Sir James Munby delivered judgment in Re J (A Child) [2013] EWHC 2694 (Fam). This is a family law case concerning care proceedings brought in relation to four siblings, the youngest of whom, J, was made subject to an emergency protection order on the day of his birth, and in relation to which the father posted a
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great deal of material about the case on the internet, including names, photographs, video and critical commentary. Committal proceedings were subsequently issued against the father alleging breaches of an earlier contra mundum reporting restriction order made in respect of one of his older children and an undertaking he gave shortly after the birth of J to remove all the material posted on the internet and within his control that would identify any of the children as being or having been the subject of care proceedings. The father admitted the breaches and was sentenced to six weeks’ imprisonment for each breach, suspended on terms. The local authority then brought a further application for a contra mundum reporting restriction order and injunction to have effect until J’s 18th birthday because, while some of the material about J and the other children had been removed, much remained including on Facebook that identified the children as being subject to care proceedings.
33. In concluding that an order should be made that prevented publication of baby J’s name but not photographs of him, Sir James Munby made the following points of broader application in support of what he called a “pressing need for more transparency”, which he labelled “critically important matters”:
(1) The right of the public to know and the need for the public to be confronted with, what is being done in its name, particularly where cases involve interference and intrusion by the state, by local authorities and by the court, into family life, in which context he held, “the arguments in favour of publicity – in favour of openness, public scrutiny and public accountability – are particularly compelling” (see para 27);
(2) The compelling need for transparency in the family justice system is demanded as a matter of both principle and pragmatism: see para 31. Sir James Munby cites Lord Steyn’s rousing words in R v Secretary of State for the Home Department ex p Simms [2000] 2 AC 115, 126 that:
“freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate facilitates the exposure of errors in the … administration of justice of the country.” (see para 31)
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(3) He rejects the response of family lawyers to complaints of “secret justice‟ that the charge is unfair and confuses a system which is private with one which is secret as follows: “This semantic point is, I fear, more attractive to lawyers than to others. It has signally failed to gain acceptance in what Holmes J famously referred to as the “competition of the market”: Abrams v United States (1919) ...The remedy, even if it is probably doomed to only partial success, is – it must be – more transparency; putting it bluntly, letting the glare of publicity into the family courts” (see para 34);
(4) The risk of poor quality reporting by the media or the manner or style in which material is presented on the internet is not a justification to prevent publication, which can only be justified to protect article 8 rights to privacy:
“Comment and criticism may be ill-informed and based, it may be, on misunderstanding or misrepresentation of the facts. If such criticism exceeds what is lawful there are other remedies available. The fear of such criticism, however justified that fear may be, and however unjustified the criticism, is, however, not of itself a justification for prior restraint by injunction of the kind being sought here, even if the criticism is expressed in vigorous, trenchant or outspoken terms. If there is no basis for injuncting a story expressed in the temperate or scholarly language of a legal periodical or the broadsheet press there can be no basis for injuncting the same story simply because it is expressed in the more robust, colourful or intemperate language of the tabloid press or even in language which is crude, insulting and vulgar. A much more robust view must be taken today than previously of what ought rightly to be allowed to pass as permissible criticism. Society is more tolerant today of strong or even offensive language...
...
The publicist – I speak generally, not of the present case – may be an unprincipled charlatan seeking to manipulate public opinion by feeding it tendentious accounts of the proceedings. But freedom of speech is not something to be awarded to those who are thought deserving and denied to those who are thought undeserving.” (see paras 38-40)
34. While much of the discussion in Re J relates specifically to Children Act 1989 proceedings, given that Sir James Munby is spearheading changes to publicity in family law and the COP together, there is little doubt that the more general observations he makes will be applied in the COP jurisdiction imminently. In fact, in
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an article by Sir James Munby in the September 2013 edition of the Elder Law Journal, in which he outlines his preliminary thoughts on further reforms to the COP, he expressly invites readers to look at his decision in Re J.
35. In the same article, Sir James Munby states that his provisional inclination is to do away with COPR rule 90, the effect of which is to require the media to seek permission of the court to be present, and instead to align practice in the COP with family proceedings, where accredited journalists have a right to attend the majority of court hearings unless proper grounds for excluding them can be established on narrowly defined grounds.
Concluding Remarks
36. So in the space of six years since the introduction of the COP, we appear to be on the brink of major change, in particular doing away with the default position of COP hearings taking place in private altogether.
37. It remains to be seen whether these proposals will strike the right balance between the powerful competing interests for openness and privacy I outlined at the start of my paper, and it is doubtful there will ever be universal consensus over such thorny issues. But there can be no doubt which side of the argument is in the ascendancy.
38. On the one hand the press represents the eyes and ears of the public. If the identity of vulnerable individuals can be protected by way of anonymity orders, one can legitimately ask why the media should not regularly have access to hearings, and why both erring and upstanding adults, social workers, experts and local authorities should not be identified. Arguably, public officials should be accountable to the media and thus the public. Further, COP proceedings constitute a significant public expenditure and the public is entitled to know how their money is being spent.
39. On the other hand, the revelations made to the Leveson inquiry would appear to justify the innate suspicion that many lawyers and judges have of journalists.
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Transparency does not only entail allowing journalists to sit in court, but also trusting them with confidential information, and to report proceedings accurately and fairly rather than exploiting it. The short answer may be that the law of contempt provides a sufficient safeguard. Further, the better informed the press is about the operations of the Court of Protection, the more accurate their reporting will be, which in turn will lead to an improved understanding of the public.
40. If there are members of this audience who hold strong opinions about Sir James Munby’s current proposals relating to publicity in the COP, then I would urge you to provide him with your views. This is the time to make them heard before the draft practice guidance is finalised and changes to the Part 13 of COPR are initiated.
9 October 2013