“Don’t be shy, Mr Bowen”

Screenshot 2019-03-04 at 11.58.59

On 18 March, I submitted an application for a transcript to be made of the Court of Appeal hearing where together with the BBC, I successfully challenged an unlawful reporting restriction order. Today, over three months later, I’m finally able to post it.

The delay is partly down to me. I made two mistakes.

First, I ordered it from a transcription service I had previously used, not realising that it didn’t do Court of Appeal hearings. Second, when I emailed my application form to a company that did, I used the wrong case reference number: not an incorrect number, but not the one they needed to request the audio.

Sorting out these mistakes has been – a lengthy and painful process. Let’s just leave it at that.

My enormous thanks to those at the RCJ who have helped all along the way. You know who you are.

My thanks too to the extremely generous person whose donation meant I could afford to pay for this transcript.

I have chosen in this single instance not to redact the name of the country of origin of the mother in the case, as I want to publish an accurate and complete record of what happened on the day. It is permitted to be public. But it is her preference that it is not reported. I understand why, and in my writing about her case to date, I have not done so. Nor has the BBC. I would very much appreciate it if in any quoting of the transcript, the mother’s wish was respected.

I’m not going to comment further, as the point is that people can read what happened during the hearing in full. But if you’d like to see where the headline of this blogpost comes from, have a quick scroll down to the bit I’ve put in bold, where Paul Bowen QC begins a beautifully polite and effective challenge to the President on his recently published Anonymisation Guidance.

______________________________

Royal Courts of Justice
The Strand
London, WC2A 1LL

Friday, 15 February 2019

IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF R (A CHILD) (REPORTING RESTRICTIONS)

Before:
THE PRESIDENT OF THE FAMILY DIVISION
(LORD JUSTICE McFARLANE)

and

LADY JUSTICE KING

BETWEEN:

(1) LOUISE TICKLE
(2) THE BRITISH BROADCASTING CORPORATION (BBC)
Appellants

– and –

(1) SOUTHAMPTON CITY COUNCIL
(2) R (A CHILD)
(by her Guardian Ad Litem, Jane Young)
(3) A (R’s mother)
Respondents
[REPORTING RESTRICTIONS / ANONYMISATION APPLIES]

_________
PROCEEDINGS

APPEARANCES
Mr P. BOWEN QC and Miss S. PHILLIMORE (instructed by Simons Muirhead & Burton)) appeared on behalf of the First Appellant.

Mr A. WOLANSKI (written submissions) (instructed by the Editorial Legal Group) for the Second Appellant.

Miss S. EARLEY (instructed by Southampton Council Legal)) appeared on behalf of the First Respondent.

THE RESPONDENT CHILD BY HER GUARDIAN did not appear and was not represented.

Mr L. MESSLING (instructed by Boardman Hawkins & Osborne) appeared on behalf of the Third Respondent.

_________

I N D E X

Page No.

SUBMISSIONS
Mr BOWEN 1
Mr WOLANSKI 23
Miss EARLEY 30
Mr MESSLING 32
Mr BOWEN 37
Mr WOLANSKI 38
Mr MESSLING 39
Mr BOWEN 43
Mr WOLANSKI 46

(For judgment, see separate transcript) 47

PROCEEDINGS AFTER JUDGMENT 47
_________________

Friday, 15 February 2019
(10.27 a.m.)

SIR ANDREW MCFARLANE: Yes, Mr Bowen?
MR BOWEN: My Lord, my Lady. I appear in this matter for the appellant, a journalist, an independent journalist, Louise Tickle.
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: With me is Miss Sarah Phillimore. Mr Adam Wolanski is here for the BBC.
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: Mr Laurence Messling is here for the mother, A.
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: And Sarah Earley is here for the local authority.
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: The Guardian had written in to apologise that—-
SIR ANDREW MCFARLANE: Yes, that they had not got funding.
MR BOWEN: –that they are not attending. They do not have any funds.
SIR ANDREW MCFARLANE: So far as the local authority are concerned I think we have had no documentation at all from them. Is there any documentation?
MR BOWEN: There is, there is a position statement. May I just hand these up, my Lord?
MISS EARLEY: We did send through a short position statement this morning.
MR BOWEN: (inaudible – over speaking)
SIR ANDREW MCFARLANE: Oh well, yes, well that is (inaudible).
MR BOWEN: I am mistaken (inaudible), my Lord.
SIR ANDREW MCFARLANE: Right, okay. Can we just read that? (After a pause) Right. So can we take matters in turn? There is no objection to the BBC being joined as a party to, to the appeal?
MR BOWEN: No, we are all agreed about that.
SIR ANDREW MCFARLANE: So as ever Mr Wolanski is welcome.
MR BOWEN: Could I, could I ask, my Lord? Can we just at the outset just set some ground rules for live tweeting?
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: Because a direction has already been given permitting live tweeting of the hearing.
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: We have agreed between the parties that there should be no live tweeting of certain details and that your Lordship and your Ladyship should made a direction under r.39.2(4).
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: So that there should be no live tweeting of the identity of any children, either R or his – her sibling.
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: Or the parents, or the mother’s ethnicity, just for the purposes of this hearing.
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: That is an issue however that needs to be resolved in the wider scheme of things.
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: Or the identities of any of the professionals, and again that is an issue that is agreed only for the purposes of live tweeting but is an issue that needs to be resolved more generally.
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: But that the name of the local authority can be reported because under the terms of Judge Levey’s original order, Southampton City Council were named in the order so there is no restriction in any way.
SIR ANDREW MCFARLANE: Yes, yes.
MR BOWEN: We are agreed at the Bar that that order can be made.
SIR ANDREW MCFARLANE: Well that seems sensible. That seems entirely sensible. So we make it plain to anyone in court that whilst live tweeting is alive, is allowed, no tweet is to include the identification of the children or the parents, or the mother’s ethnicity or the identification of any of the professionals, but can name the local authority.
MR BOWEN: Thank you, my Lord. So, my Lord, we have all agreed that we are going to do our best to avoid saying anything, which cannot be reported anyway.
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: But I think that should, that should cover it.
SIR ANDREW MCFARLANE: Good.
MR BOWEN: So, my Lord, my Lady, I am going to take my submissions of 8 September largely as read. I apologise for the lack of material.
SIR ANDREW MCFARLANE: Well can we cut to the chase.
MR BOWEN: Yes.
SIR ANDREW MCFARLANE: I have established this hearing—-
MR BOWEN: Yes.
SIR ANDREW MCFARLANE: –and sometimes you establish a hearing and you wonder why you did or did not, but it seems to me – and I think my Lady – that in fact it has been very useful because it has drawn out in detail what everyone says about any reporting restrictions order, and also the submissions, and we are extremely grateful to you, Mr Bowen, taking up the baton that Miss Phillimore had polished and carried in providing your skeleton argument. It seems to me, acting pro bono as you do, what your contribution is, instructed by Miss Tickle, has been extremely useful.
MR BOWEN: Thank you.
SIR ANDREW MCFARLANE: The position that my Lady and I have at the moment is that we accept that it would be very helpful to the system as a whole, and to journalists, for there to be greater clarity as to the process to be adopted where journalists attend, as they entitled to do, family courts which are being conducted in private and then wish to make an application for the reporting restrictions to be lifted. And subject to further assistance from you and others this morning, we feel that guidance in the broad shape of the guidance that you have suggested would be helpful.

In terms of how that proceeds, we are conscious that, at a hearing such at this, only limited contributions are made by the parties who happen to be here and who are represented before the court and the guidance, if it is to be of greatest value, probably needs to be the subject of some sort of consultation with a wider community. Equally such guidance is normally issued in the form of guidance from the President rather sitting in the body of a judgment given at a short hearing in the Court of Appeal. So subject to your various submissions, what we would propose to do is tease out some of the detail this morning with all of you, and then deal with the appeal by way of a short judgment making a reporting restrictions order in place of the one made by Judge Levey, but then dealing with the guidance by a process of sending out a draft for consultation and then issued as soon as possible by me as President in due course.

Now that would obviate the need for any further hearing as it seems to us that that would be unnecessary and given the costs implications, or the lack of costs, that would be a burden on you, and also the number of senior journalists involved here can be about their business rather than turning up on another day in March to do what we think we can do today.
MR BOWEN: Yes.
SIR ANDREW MCFARLANE: So that is where we are, subject to you persuading us that we should take a different course.
MR BOWEN: Well, my Lord, that is very helpful. Thank you. I think that the – that there is unanimity among the parties. If we were to take the four potential public interest issues that I have highlighted in, in our submissions at para.8—-
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: –there is unanimity that there needs to be some practice guidance.
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: And that clearly my Lord’s proposal would, would meet that, that issue.
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: I have highlighted, and I think it is fair to say, that these are issues which, which the other parties do not – are not clamouring for the court to resolve.
SIR ANDREW MCFARLANE: No.
MR BOWEN: But I have highlighted three additional issues and it will be helpful if your Lordship were to give an indication whether you were proposing to deal with any of those in any practice guidance.
SIR ANDREW MCFARLANE: So just so we are not talking at cross purposes—-
MR BOWEN: So if we—-
SIR ANDREW MCFARLANE: –which are the three additional—-?
MR BOWEN: So the – if I could pick up in our written submissions, it is at p.97 of the appeal bundle, para.8.
SIR ANDREW MCFARLANE: Yes, yes.
MR BOWEN: So we have highlighted some four potential issues. The first one is this, the guidance which your Lordship has already dealt with. The second is the, this issue of whether the automatic reporting restrictions create a presumption or merely a starting point.
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: And I have, I have outlined in our submissions why we submit that it is a starting point, not a presumption. But it may be that some clarity on that would be of assistance.
SIR ANDREW MCFARLANE: Right.
MR BOWEN: Because of course it has practical implications. If it is a presumption then it is for the person seeking to overturn the restrictions to prove it.
SIR ANDREW MCFARLANE: Yes. No, it is.
MR BOWEN: And if it is just a starting point then it is not.
SIR ANDREW MCFARLANE: But clearly there is a material difference between the two.
MR BOWEN: Then the third issue is that this paramountcy point—-
LADY JUSTICE KING: Which really ties in with the starting point of presumption—-
MR BOWEN: Well it does, my Lady.
LADY JUSTICE KING: –in a way that (inaudible).
MR BOWEN: It does. Now—-
LADY JUSTICE KING: And then look at 97, the issue is, is ultimately going to have to be resolved. I mean it—-
MR BOWEN: It is.
LADY JUSTICE KING: –for my own part, and I am sure for my Lord’s part, it is coming more and more often. The question is whether, you know, in—-
MR BOWEN: This is the right case.
LADY JUSTICE KING: Whether this is the right case.
MR BOWEN: Yes. And, and all that I would propose is that, well you have a case here – it was not – it did not come up specifically—-
LADY JUSTICE KING: No.
MR BOWEN: –in the course of submissions before His Honour Judge Levey.
SIR ANDREW MCFARLANE: No.
MR BOWEN: But it should have done because—-
LADY JUSTICE KING: Well what you say – not much did.
MR BOWEN: Not much did, exactly. So this would provide a vehicle by which it could be resolved. You have got at least one willing party. I cannot speak for the others but it is a matter of course for the court.
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: But it is clearly an issue that would satisfy the Salim(?) test that a case that the court could resolve, even if there was no lease inter partes, it is of sufficient importance that would warrant a judgment. And then the last issue, and I make this submission with a degree of tentativity—-
SIR ANDREW MCFARLANE: Do not be shy, Mr Bowen.
MR BOWEN: But I do suggest, my Lord, that, that there are certain aspects of the anonymisation guidance that were given in December which are potentially misleading.
SIR ANDREW MCFARLANE: Mmm hmm.
MR BOWEN: In particular where, where there is reference to the need to – for there to be no risk of identification or for the risk of identification to be eliminated. I have in mind – we have got a copy of it in the bundle of authorities before your Lordships at tab 16, if I just pull it up.
LADY JUSTICE KING: We went through it yesterday actually.
SIR ANDREW MCFARLANE: I am afraid I have not brought the bundle of authorities in.
MR BOWEN: I think Lady Justice King is going to share hers, my Lord.
MALE VOICE: We have a spare.
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: We have a spare.
LADY JUSTICE KING: Thank you.
SIR ANDREW MCFARLANE: Good, thank you. (Same handed)
MR BOWEN: And it is at tab 16—-
SIR ANDREW MCFARLANE: Thank you.
MR BOWEN: –if one turns to p.334 just by way of example. Page 334, under the left-hand column where it reads, “Name of the local authority applicants.”
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: And then the, the right-hand column:
“In the first instance while the default position is that an applicant should be named, the judge should undertake a balancing act and name of the local authority should be confined to cases where after redaction …”

And then picking it up at the last, last five lines:
“… the judge concludes that the name of the local authority will carry with it no risk of identifying the children, or any of them.”

SIR ANDREW MCFARLANE: Yeah.
MR BOWEN: And we, we respectfully submit that—-
SIR ANDREW MCFARLANE: You think that is too high, yeah.
MR BOWEN: –there is a balance that needs to be struck.
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: And in, in, for example, MacDonald J’s judgment of H v. A (No. 1) [2015] EWFC 58, where he carried out that balance, even if there is some risk that is outweighed by the public interest then, then that particular detail would still need to be published, and we are concerned that if that were to be applied literally then judgments would be anonymised which went too far.
SIR ANDREW MCFARLANE: Yes, yes.
LADY JUSTICE KING: It seems to me as well having – in the light of your skeleton argument, having gone through this yesterday, that there is an allied concern that you are raising which is whether jigsaw identification, which has effectively become a term of art in the most recent years, has effectively just been, “Press that button, say the word ‘jigsaw,'” and in comes the reporting restrictions order.
MR BOWEN: Yes.
LADY JUSTICE KING: And one has to step back and go through the process, identify the harm, carry out a balancing exercise—-
MR BOWEN: Yes.
LADY JUSTICE KING: –and that you have got to look at the jigsaw and not just say, “jigsaw.”
MR BOWEN: Well, my Lord, this, this comes back to our point about presumption versus starting point.
LADY JUSTICE KING: It does, absolutely.
MR BOWEN: Because if it is a starting point then both values of transparency and privacy being of the same value initially, those who seek to uphold the restriction must establish the need to do so by evidence, and this again feeds into that question of well, you know, what evidence is there that this would lead to identification and if, if it did there is a second necessary question of what harm that would cause. Bearing in mind what Wall LJ said in Clayton v. Clayton [2006] EWCA Civ. 878—-
LADY JUSTICE KING: Yeah.
MR BOWEN: –which is that you cannot presume harm that will ensue if a child is, is identified.
SIR ANDREW MCFARLANE: No, no.
MR BOWEN: Now I understand since then, of course, the Julia Brophy research has, has perhaps has a particular influence on the debate in this area about concerns the children themselves have expressed about being identified.
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: And perhaps that has in some respects shifted the balance in the other direction, and the risk caused is, is in correcting what had been a shift in favour of transparency, whether it may have shifted it too far back in the other direction.
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: Now, my Lord, my Lady, these of course are matters that you could address by way of guidance, but in my respectful submission they are matters that arise for determination. They are sufficiently important to be determined. This is a vehicle in which those issues could be determined. You will have seen our proposal which has been picked up by the Guardian, that if you were minded to hear submissions about these wider public interest issues that CAFCASS could instruct a friend to the court, an amicus, for the court to hear submissions in the other direction if you like, if, if none of the other parties wished to attend.
SIR ANDREW MCFARLANE: Mmm hmm.
MR BOWEN: But in one sense I am not seeking to persuade your Lordships that you should have a hearing. All I seek to do is to demonstrate that there are some real issues here.
SIR ANDREW MCFARLANE: Mmm hmm.
MR BOWEN: Some of those issues would of course be addressed by guidance of the kind that my Lord has identified in your proposal. But perhaps not all of them would be and you would, of course, not have the benefit of submissions.
SIR ANDREW MCFARLANE: Well it would not be possible in, it would not be possible in guidance, I would think, to resolve the issue of whether it is a presumption or a starting point, or what role the welfare of the child should, should take.
MR BOWEN: Well, my Lord, I would be inclined to—-
SIR ANDREW MCFARLANE: Those, those go beyond guidance.
MR BOWEN: I would be inclined to agree with that as a proposition. But I do not seek to persuade you that you should do this. This is very much a – from, from my client’s point of view, as a working journalist who has to, has to encounter these issues in practice—-
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: –they are the kind of issues that are causing difficulties for her and, and for others like her.
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: And I only raise the question whether my Lord’s very welcome suggestion of producing practice guidance would necessarily answer all of the questions—-
SIR ANDREW MCFARLANE: Well no, you are right to do that and indeed you are right that not all of the points would be encapsulated in guidance.
MR BOWEN: But, my Lord, I do not, I do not seek to persuade you, as I say, in another way—-
SIR ANDREW MCFARLANE: Perhaps it would be, would be possible to correct any infelicity in, in the December guidance in further guidance.
MR BOWEN: Of course.
SIR ANDREW MCFARLANE: The, the central points are really the, the first two, the linked one, presumption and the staring point, and the welfare of the child.
MR BOWEN: My Lord, I think that is already a matter of settled law.
SIR ANDREW MCFARLANE: Mmm hmm.
MR BOWEN: There is one paragraph in my Lord’s judgment in Re W (A Child) [2016] EWCA Civ. 793 (Fam)(?), para.36, which, which perhaps fudges that a little bit and it would be helpful to have it restated that it is a starting point and not a, not a—-
SIR ANDREW MCFARLANE: When I said, “Do not be shy, Mr Bowen,” I was not encouraging you to be downright offensive. (laughter)
MR BOWEN: Well, my Lord, I do not think anybody’s ever accused me of being shy so I am perfectly happy to—-
SIR ANDREW MCFARLANE: No, well I parked it, did I not? I said it needs to be looked at, yes.
MR BOWEN: Well you, you parked the issue of paramountcy.
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: But in relation to presumption you, you – the submission was being made on behalf of the media organisation so the presumption was in favour of transparency.
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: And you rejected that. You said, “No, there is not a presumption. The presumption is to the contrary.”
SIR ANDREW MCFARLANE: Mmm hmm.
MR BOWEN: Now—-
SIR ANDREW MCFARLANE: Right, okay.
MR BOWEN: That is all. It is para.36 of that judgment.
SIR ANDREW MCFARLANE: Okay.
MR BOWEN: Again, my Lord, that could be dealt with, I think, in guidance because the case law is legion that says in terms—-
SIR ANDREW MCFARLANE: Yeah.
MR BOWEN: –that the process is one where effectively the scales stand empty at the outset—-
SIR ANDREW MCFARLANE: Yes, yeah.
MR BOWEN: –and neither value has primacy.
SIR ANDREW MCFARLANE: Yeah.
MR BOWEN: So probably the only one that could not be resolved by way of the sort of guidance that my Lord has suggested is the paramountcy issue.
SIR ANDREW MCFARLANE: Yeah.
MR BOWEN: But that may well come up before your Lordships at some point in due course anyway.
SIR ANDREW MCFARLANE: Yeah.
MR BOWEN: We are not – I am not going to seek to suggest that this is the only case that could decide that, that issue.
SIR ANDREW MCFARLANE: Yes, yes.
MR BOWEN: So those, those were the public interests that I just wanted to flag up.
SIR ANDREW MCFARLANE: Thank you. That is very helpful.
MR BOWEN: We do have, we do nevertheless have to reach some conclusion as to how to resolve the, the appeal.
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: And we have now reached a still more substantial degree of agreement.
SIR ANDREW MCFARLANE: So we have got the – a version of the draft order. I do not know if it is the most recent one.
MR BOWEN: It is not. I know that my learned friend Mr Messling has some proposals to make that would amend those—-
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: –and I am going to leave them to him in a moment. But I will just flag up what they are. His concern remains that references to the mother’s ethnicity—-
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: –in the Court of Appeal judgment—-
SIR ANDREW MCFARLANE: In the Court of Appeal judgment.
MR BOWEN: –should not be repeated in any subsequent reporting. Now—-
SIR ANDREW MCFARLANE: I was not, I was not sure whether he was suggesting the court should go further and take some steps to remove the reference in the Court of Appeal.
MR BOWEN: Well that was the original suggestion.
SIR ANDREW MCFARLANE: That is what I read, yes.
MR BOWEN: That was the original suggestion. I do not think Mr Messling is suggesting that now because I think he accepts—-
SIR ANDREW MCFARLANE: I think that would be very, very difficult to do.
MR BOWEN: –that now it has been reported in half a dozen different law reports, some of which will be in hard copy—-
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: –it would be in fact impossible to do so.
SIR ANDREW MCFARLANE: Impossible, yeah.
MR BOWEN: But I accept as a matter of principle that if there is a risk of harm that reaches the necessary threshold for Art.8 purposes then the court does have jurisdiction to make orders that restrict further reporting of a particular detail, and I accept that.
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: But I think what I will probably do is leave it to Mr Messling to deal with that point.
SIR ANDREW MCFARLANE: Yes. But if—-
LADY JUSTICE KING: Can I just check something?
SIR ANDREW MCFARLANE: Yes, you go.
LADY JUSTICE KING: Can I just check? Looking at the header of the order that I am looking at, so I am clear that we are working on the same document—-
MR BOWEN: Yes.
LADY JUSTICE KING: –my header says:
“2019-02-08. Draft report and restriction order after comments from all parties but before final agreement.”

MR BOWEN: Yes, it should have p.113 at the top.
LADY JUSTICE KING: And then it has got sort of (inaudible)—-
SIR ANDREW MCFARLANE: One, one three at the top, yes.
MR BOWEN: Yes.
LADY JUSTICE KING: And then it has got colours on it?
MR BOWEN: Yes.
LADY JUSTICE KING: Right.
MR BOWEN: So that is – that was the latest version until Mr Messling made his suggestions, which he is going to outline.
SIR ANDREW MCFARLANE: Right.
LADY JUSTICE KING: Fine, I just thought that—-
SIR ANDREW MCFARLANE: I think the only – in terms of the substantive order, the only need for further consideration that my Lady and I would point to, is the phrase, “was unlawful.”
MR BOWEN: Yes. So I have spoken to Miss Earley about this.
LADY JUSTICE KING: Yes.
MR BOWEN: She would be happy for it to be recorded that the judgment was – the order was, was wrong.
LADY JUSTICE KING: Wrong.
MR BOWEN: But not that it was unlawful.
LADY JUSTICE KING: Yeah, I personally was unhappy with the word, “unlawful.”
SIR ANDREW MCFARLANE: Yes, yes.
MR BOWEN: Yes.
LADY JUSTICE KING: It was obviously perceived to be incorrect.
MR BOWEN: Yes.
LADY JUSTICE KING: And, and reached the standard for allowing the appeal.
MR BOWEN: Yes, of course. I mean I am talking as a public lawyer.
LADY JUSTICE KING: But making—-
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: You know as far as I am concerned that means it is unlawful. But I am perfectly happy for it to be wrong in the terms of the order. So that has gone away.
SIR ANDREW MCFARLANE: Right, so that has—-
LADY JUSTICE KING: Fine, that is sorted.
MR BOWEN: And then as far as the terms, the substantive terms are concerned there were a couple of suggestions made by my learned friend, Mr Wolanski, which I think are now all agreed, at p.119. Obviously at p.118 there are some details to be (inaudible) but we can deal with all, all of that.
SIR ANDREW MCFARLANE: Sorry, 119. So in terms of the order itself that is in strict (inaudible) terms and no order for costs, yeah.
MR BOWEN: And as far as – sorry, the order itself. Yes, no order for costs.
SIR ANDREW MCFARLANE: Yeah.
MR BOWEN: That is agreed.
SIR ANDREW MCFARLANE: Then 119. Just on 118—-
MR BOWEN: Yes.
SIR ANDREW MCFARLANE: –there is a reference to the second child and the need to include their birth date for the expiration of the order.
MR BOWEN: Yes, yes.
SIR ANDREW MCFARLANE: I do not know that we know what that date is. It may be the local authority—-
MR BOWEN: Well I think Mr Messling will have those details.
SIR ANDREW MCFARLANE: Of course, Mr Messling is likely to have instructions on, on that. But I do not think – we have not got them within the modest paperwork we have got.
MR BOWEN: I was slightly foxed by this. I mean the, the suggestion is that a specific birth date should not be given. So that is why R’s birth date appears as November 2030.
SIR ANDREW MCFARLANE: Yeah.
MR BOWEN: And presumably the same should be for D.
SIR ANDREW MCFARLANE: Given the scope of what we are dealing with, which is an order for 18 years or so, a week here or there at the end of it is not going to be out of proportion.
MR BOWEN: No. So if we, if we just – when we insert that it will have the same degree of—-
SIR ANDREW MCFARLANE: Yeah.
MR BOWEN: –or lack of specificity about date.
SIR ANDREW MCFARLANE: Yes.
LADY JUSTICE KING: Yes. Well I mean if you put the actual date when he is 18, I mean that would be a kindergarten jigsaw, would it not?
SIR ANDREW MCFARLANE: Mmm hmm.
MR BOWEN: My Lady, yes. So that is p.118. Then p.119, as I said, Mr Wolanski’s suggestion which is highlighted there is, I think, agreed by everybody.
SIR ANDREW MCFARLANE: Right.
MR BOWEN: And then p.120, para.5, those details will be provided by the solicitors for A, and, my Lords, I would not want the hearing to pass without recording our thanks to them as well for appearing pro bono for the mother in these proceedings.
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: Both counsel and, and solicitor.
SIR ANDREW MCFARLANE: All this week I have been sitting in this court – I did not sit on Monday, I had a reading day – but of the counsel in the room, I think of eight counsel in the case I was hearing, six of them were appearing for three days pro bono in a substantial piece of litigation, and here you are, and I think the Bar is not thanked often enough. I think we all bend over backwards but the public do not recognise just how public spirited the Bar is in providing its services and its expertise, at a high level, in these cases of importance. We just could not function effectively without it. Miss Tickle would attend. She would make her submissions and they would be clear and well thought out. But in terms of the process it needs a lawyer to engage in the, in the way that you have been able to do, and I think that Miss Tickle would agree with me in that respect, given the difficulties that she has encountered from time to time.
MR BOWEN: Well it just so happens, my Lord—-
SIR ANDREW MCFARLANE: I just think that needs to be said.
MR BOWEN: It just so happens, my Lord, we happen to have quite a lot of journalists in the room today so—-
SIR ANDREW MCFARLANE: Well who, who—-
MR BOWEN: So perhaps the message will get out.
SIR ANDREW MCFARLANE: Well who knows, who knows?
LADY JUSTICE KING: Yes. I mean your – the skeleton argument that you and Miss Phillimore have put together, despite your expertise, it is a very significant piece of work and I think those of us who are reading that, as my Lord and I have been, can just get how many hours that took to – not just to do the research and produce it, but to produce a document completely free of typographical errors, beautifully formatted and completely accessible, and I, on my part, am extremely grateful.
SIR ANDREW MCFARLANE: Yes, here, here.
MR BOWEN: Well that is very much appreciated but I think we all, we all appreciate those thanks.
SIR ANDREW MCFARLANE: Yeah, yeah, right. Moving on, p.120?
MR BOWEN: So 120, yes. So those details will be provided in para.5 by the solicitor in (inaudible)—-
SIR ANDREW MCFARLANE: Just one or two – in para.6(b)—-
MR BOWEN: Yes.
SIR ANDREW MCFARLANE: –and this is what is not restricted:
“Reporting or publishing any criticism made by A, R’s mother, of the previous care proceedings.”

Is that criticism made within proceedings or criticism that she might have voiced to journalists outside?
MR BOWEN: Well I think she, I think she would—-
SIR ANDREW MCFARLANE: I think that is why I really did think the latter.
MR BOWEN: As I understand it that would be both. I mean it would be any criticism.
SIR ANDREW MCFARLANE: So I just wanted to be clear about that.
MR BOWEN: Yes. I think she wants to, to be able to go on record—-
SIR ANDREW MCFARLANE: Well I think that is why she is in favour of the order being varied.
MR BOWEN: Yes. Well she is in this difficult position obviously because, you know, the last thing she wants is for her child to be identified.
SIR ANDREW MCFARLANE: Yeah.
MR BOWEN: But she also wants her voice to be heard about what happened to her.
SIR ANDREW MCFARLANE: So I – (After a pause) – yeah, yeah.
LADY JUSTICE KING: I do not know whether you want to – I do not know whether, just to be on the complete safe side, it ought to be just slightly tweaked so it makes it absolutely clear that it covers both of those challenges.
SIR ANDREW MCFARLANE: Yes, but that is—-
LADY JUSTICE KING: Because we do not—-
SIR ANDREW MCFARLANE: –that is what I was going to – because you do not want to be on the wrong end of a contempt order—-
LADY JUSTICE KING: No.
SIR ANDREW MCFARLANE: –if it is ambiguous.
MR BOWEN: Well perhaps—-
SIR ANDREW MCFARLANE: So I think, that is why I raised it, for my part I think it needs to expressly say, “Reporting or publishing any criticism made by A’s mother (whether within the court process or by other means)” – that is bad wording – (or, or outside).
MR BOWEN: Yes.
LADY JUSTICE KING: Or otherwise is perhaps a (inaudible).
SIR ANDREW MCFARLANE: Or otherwise, or otherwise.
LADY JUSTICE KING: Within the court process or otherwise.
SIR ANDREW MCFARLANE: Or otherwise, yeah.
MR BOWEN: Or otherwise.
LADY JUSTICE KING: Would that do it? Yeah?
SIR ANDREW MCFARLANE: Yeah.
MR BOWEN: Yes.
LADY JUSTICE KING: I do not want to create any hostages to fortune.
MR BOWEN: Yes, I mean I think it is worth repeating that this is, this is a family where a child was removed on what the Court of Appeal has described as the slimmest of evidence of harm to the child, and she then had to appeal the case to the Court of Appeal using her own resources.
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: It has been reported it was £20,000. It was in fact I think £60,000 of her own resources necessary to overturn the Care Order, and it then returned back to the Family Court—-
SIR ANDREW MCFARLANE: Yeah.
MR BOWEN: –where the local authority agreed that the Care Order could be set aside.
SIR ANDREW MCFARLANE: Yeah.
MR BOWEN: And the child was returned to her mother in the summer of last year.
SIR ANDREW MCFARLANE: Yeah.
MR BOWEN: And that obviously raises a number of public interest issues, not least – and this is one of the matters that I know that Miss Newman(?) particularly wanted to record – the fact that this particular local authority area has the highest rate of adoption of children in the country.
SIR ANDREW MCFARLANE: Well I have read the statement, yes.
MR BOWEN: But, my Lord, thank you I am grateful for that, that suggestion to 6(b).
SIR ANDREW MCFARLANE: And it shows also that a lot of the applications for permission to appeal in public law children cases are made by litigants in person, and it just shows what a – I cannot think of the right word – of just how, how vulnerable the system is to the litigant in person not actually feeling able to appeal.
MR BOWEN: Yes.
SIR ANDREW MCFARLANE: And how crucial it is that the Court of Appeal, as it did in this case, sees the validity of any potential appeal and, and takes it up. It is a very fragile, in some cases, pathway given the, the stakes that are involved.
MR BOWEN: Well, my Lord—-
SIR ANDREW MCFARLANE: As this, this case shows. The order has gone from the child being placed for adoption to going home.
MR BOWEN: I mean with the best will in the world, and however expert the judge considering the application for the need to appeal—-
SIR ANDREW MCFARLANE: Mmm hmm.
MR BOWEN: –when confronted by an application made by a litigant in person—-
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: –it is an extraordinary amount of extra work that you would have to do in order to find a sort of analysis that you would get if you—-
SIR ANDREW MCFARLANE: Yeah, yes.
LADY JUSTICE KING: Well, Mr Bowen, what in fact happens, which can reassure you and those listening, is it is for that very reason that applications for permission to appeal in any child care case only ever go before a specialist family lord or lady justice, because only those people, with that expertise, can effectively – as my Lord I think did, I assume, in this case—-
SIR ANDREW MCFARLANE: Mmm hmm.
LADY JUSTICE KING: –have the expertise to tease out and read between the lines—-
MR BOWEN: Yes.
LADY JUSTICE KING: –of the, of the litigant in person’s ability to express what they felt went wrong and why whatever happened was not right.
MR BOWEN: Well that, I am sure, will be of very considerable comfort, but it is certainly, in my respectful submission, better than a person in that situation should have public funding to enable them to instruct—-
LADY JUSTICE KING: Oh, of course.
SIR ANDREW MCFARLANE: Yeah.
MR BOWEN: –specialist counsel. It is just—-
LADY JUSTICE KING: I am just telling you what Elastoplast we have available for use.
MR BOWEN: Yes. Well I am sure we are all very grateful for the Elastoplast but—-
SIR ANDREW MCFARLANE: And in the, in the event the appeal was allowed because of basic structural flaws in the judge’s judgment and, and a parent will have had – no, she did not have public funding, did she? She was a litigant in person before, because it was the discharge application and an application to place for adoption she did not have public funding in, in the first instance.
MR BOWEN: Those behind me are nodding, my Lord.
SIR ANDREW MCFARLANE: Mmm hmm.
MR MESSLING: My Lord, the figure of £60,000 divided under my instructions as follows—-
SIR ANDREW MCFARLANE: Yes, but that is – so she was privately paying. That is why she was privately paying.
MR MESSLING: She paid that (inaudible)—-
SIR ANDREW MCFARLANE: Yeah.
MR MESSLING: –£20,000 (inaudible).
SIR ANDREW MCFARLANE: So the point that I was going to make just does not apply, yeah.
MR BOWEN: So – sorry, my Lord, we got slightly sidetracked. So the, so the order, para.6, p.120, (g), that is, that is agreed, I understand.
SIR ANDREW MCFARLANE: So the judgment of Judge Hess is not currently in the public domain.
MR BOWEN: No, so—-
SIR ANDREW MCFARLANE: So he proposal in (g) is that it is to be suitably redacted to comply with the reporting restrictions order.
MR BOWEN: Yes.
SIR ANDREW MCFARLANE: And is then to be made public so that those interested in this case can, can see the raw materials, see his judgment, the Court of Appeal judgment.
MR BOWEN: Exactly.
SIR ANDREW MCFARLANE: Yeah.
MR BOWEN: And there was some debate outside court whether we should be going back to Judge Hess to get him to make that order or not. On reflection, in my respectful submission, this court can and should make that order.
SIR ANDREW MCFARLANE: But this court could, had it been asked, have made it in the original appeal.
MR BOWEN: Yes, had you been asked.
SIR ANDREW MCFARLANE: So I mean I think we are seized of—-
MR BOWEN: Yes.
LADY JUSTICE KING: Well we can make any order that the lower court could have made.
SIR ANDREW MCFARLANE: Yeah.
MR BOWEN: Yes.
LADY JUSTICE KING: Have you agreed from a practical point of view how you are actually going to get the redaction from—-?
MR BOWEN: I think, I think we are, we are 99 per cent of the way there on redactions. I do not see anybody shaking their heads.
SIR ANDREW MCFARLANE: And indeed—-
MR BOWEN: But I think that is probably something that we can agree between us.
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: But if we, if we could just – if we cannot agree it we could perhaps come back to you on paper.
SIR ANDREW MCFARLANE: But if you could – yes. We have not – my Lady and I have not got a copy of Judge Hess’ judgment.
MR BOWEN: No, we thought you had enough in front of you already.
SIR ANDREW MCFARLANE: Yes, well we have obviously both read it at different times.
MR BOWEN: Yes.
SIR ANDREW MCFARLANE: But – yes.
MR BOWEN: So that—-
SIR ANDREW MCFARLANE: That is that.
MR BOWEN: So that it (g), and then I think those are the only other matters, and then of course the details of the children and of the relevant professionals – sorry, parents, carers, etc., are sch.1 and sch.2. Those will be populated in the final version—-
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: –that we agree and perhaps send to your clerks.
SIR ANDREW MCFARLANE: And indeed the reporting of – (h) at the top of 121:
“Reporting or publishing any detail in the transcript of the proceedings before Judge Levey.”

Do they need – that is subject to the reporting restriction order in relation to any detail that might identify the children or the parents?
MR BOWEN: Yes, so—-
SIR ANDREW MCFARLANE: So does that not need to have a caveat in it?
MR BOWEN: Well it is—-
SIR ANDREW MCFARLANE: Well the whole thing is subject to para.3.
MR BOWEN: Some of para.6 is subject to para.3 above.
SIR ANDREW MCFARLANE: Yeah.
MR BOWEN: “Nothing in this order should prevent any person from,” so it is all—-
SIR ANDREW MCFARLANE: Fine, good, so it is all – the caveat covers it.
MR BOWEN: –all subject to – so, my Lord, my Lady, the only two other points that I think that I need to make while I am on my feet are these. One of the issue of practice that it would be very helpful if you could address in your practice guidance, is the fact that a journalist making an application to lift or vary reporting restrictions should not be liable for the costs of those, of that application.
SIR ANDREW MCFARLANE: Yeah.
MR BOWEN: Now the Family Procedure Rules 28.2 disapplies CPR 44, so there should not be that risk anyway. But we have seen, certainly for the purposes of this appeal, that the risk of costs orders are such that somebody like Miss Newman, for example, did not feel able to participate in the appeal because of her concerns about costs.
SIR ANDREW MCFARLANE: Mmm hmm.
MR BOWEN: And Miss Tickle rather bravely went ahead anyway.
SIR ANDREW MCFARLANE: Yeah.
MR BOWEN: But if you could also make the point, and I have got the references here – if I just hand them up to you, you can slot them into the back of your authorities. (Same handed) But the Supreme Court in the case of Re S (A Child)(Costs: Care Proceedings) [2015] UKSC 20 looked at this question of whether there should be costs – the same position on costs on an appeal.
SIR ANDREW MCFARLANE: Thank you.
LADY JUSTICE KING: Yeah.
MR BOWEN: And said that it should be, and again if, if your Lordship and my Lady would be prepared to, in any practice guidance to make clear that a journalist seeking an order to vary reporting restrictions should not be at risk of paying any costs of the application, or of any appeal against an order if unsuccessful, unless they are acting on the—-
SIR ANDREW MCFARLANE: Yes, I was going to say there would have to some caveat.
MR BOWEN: Yes. And I think the phrase used in, in Re S is – if I just pull it up—-
LADY JUSTICE KING: “Reprehensible” I think is the word, is it not?
MR BOWEN: I beg your pardon, my Lady.
LADY JUSTICE KING: Was “reprehensible” not the word?
MR BOWEN: Yes, it might well have been. I have got them here. (After a pause) Yes, it is acting, if they have acted reprehensibly.
SIR ANDREW MCFARLANE: Yes. But these – and also the process that these applications are likely to happen during the course of the day.
MR BOWEN: Yes.
SIR ANDREW MCFARLANE: The journalist or the blogger attends court not particularly knowing what is going to happen during the course of the hearing. Something takes place that they think justifies relaxation of the restrictions so they make the application. It is a pragmatic dynamic process rather than something that needs to be—-
MR BOWEN: Yes, and we, we mention practical suggestions about—-
SIR ANDREW MCFARLANE: –hampered by the need to go through a formulaic process, and you would say pay a fee.
MR BOWEN: Indeed. And one thing that might well be worth adding, I know Mr Wolanski had a suggestion to add to our proposed set of directions which he may raise, but essentially where a reporting restriction is sought that goes beyond the automatic reporting restrictions, consideration should be given to the existing guidelines—-
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: –the existing Practice Direction. My only concern about that, and I have articulated this to Mr Wolanski, is that one would not want everybody to have to go away while an application was lodged on Copy Direct, with a full reporting restriction order. But certainly once it becomes clear that in order to allow some variation is it necessary to have some additional restriction that goes beyond the automatic restrictions – for example, going beyond the, the conclusion of the proceedings – then clearly in those circumstances there is both a reporting restriction issue—-
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: –as well as a variation of the automatic reporting restrictions issue, and that is why it is really important that the parties should sit down and draft a copy of what it is that they are asking the court to, to do.
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: And it may well be sensible to suggest that if a journalist is present and wants to record what is reporting, that that be dealt with at the outset of the proceedings.
SIR ANDREW MCFARLANE: Yes, yes.
LADY JUSTICE KING: I think when the (inaudible) r.7(f), first came in, that, that is what was planned, was that if a journalist was in, came to court, their credentials would be checked and then effectively it would be dealt with right at the beginning of the trial, “Well this is going to be an issue.” And of course what we found is that it is vanishingly rare that journalists actually do attend the day to day hearings in the family courts, so that that has sort of fallen away because it was a pointless exercise that simply took up court time.
MR BOWEN: Well I think, I think what happened is that a Practice Direction was – there is a Practice Direction on what to do is somebody objects to the journalist being there.
LADY JUSTICE KING: Yes, yes, but not the other way round.
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: But none, but none – exactly.
SIR ANDREW MCFARLANE: No, there is plainly a need for this.
MR BOWEN: And I think it is right to say that now that the Practice Direction has been amended in the light of the pilot to allow legal bloggers, in fact these issues are coming up more frequently, because they are more likely to be there.
SIR ANDREW MCFARLANE: Mmm hmm.
LADY JUSTICE KING: Well I think that is why the s.97(2) keeps coming over my desk.
MR BOWEN: Yes, yes, I am sure.
LADY JUSTICE KING: Or nearly coming over my desk.
SIR ANDREW MCFARLANE: Yes, and the legal bloggers pilot has been informative in one respect, in that the people going, by and large, are qualified lawyers. They tend to be barristers taking time out of their ordinary practice, so they are coming in with, with eyes which are attuned to the court process but sitting in a different seat.
MR BOWEN: Yes.
SIR ANDREW MCFARLANE: And they can spot infelicities in the process which a journalist, even experienced in attending court, would not necessarily spot.
MR BOWEN: Yes.
SIR ANDREW MCFARLANE: So it has been useful in that respect.
MR BOWEN: Yes. So, well thank you, my Lord, my Lady. We would then ask that the order in those terms be made.
SIR ANDREW MCFARLANE: Mmm hmm.
MR BOWEN: There will need to be something added to the order to record what can be reported from today’s proceedings.
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: My proposal being—-
SIR ANDREW MCFARLANE: Well there is nothing, nothing so far—-
MR BOWEN: No.
SIR ANDREW MCFARLANE: –that – this is an open court and in terms of the, the embargo on tweets, clearly anything about the children or the parents which we have not said anything so far—-
MR BOWEN: Yes.
SIR ANDREW MCFARLANE: –would stand because that is covered in the order. We need to hear from Mr Messling about ethnicity, but the naming of professionals no one is suggesting that that should be somewhere in this picture.
MR BOWEN: No, and, and the professionals who can be named will be those that are already named in the Court of Appeal judgment—-
SIR ANDREW MCFARLANE: Yes, and that—-
MR BOWEN: –and those that are named in the judgment of His Honour Judge Hess.
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: And I think the only names that have been redacted from that are the current carers. Miss Earley probably would be—-
MISS EARLEY: The previous, the previous list of carers.
LADY JUSTICE KING: Yes.
MISS EARLEY: And the names of medical practitioners who are linked with the local area, which have been taken out.
SIR ANDREW MCFARLANE: Well that is clearly a proportionate and relevant step to take.
MR BOWEN: Yes.
SIR ANDREW MCFARLANE: So in terms of what is left, subject to obviously what everyone else may submit, my Lady and I need to decide whether we maintain the March hearing in order to have a fuller consideration of the, the role of the welfare of the child.
MR BOWEN: The paramount issue, I think it is the only one you cannot deal with by way of Practice Direction.
SIR ANDREW MCFARLANE: Yes, yes.
MR BOWEN: And I repeat, I am not, I am not making a submission that you should.
SIR ANDREW MCFARLANE: No.
MR BOWEN: I am just saying that if you felt that it was necessary we would be prepared to come along and make submissions on it.
SIR ANDREW MCFARLANE: It is – yes, thank you. Thank you. Anything else? No, thank you.
MR BOWEN: Thank you, my Lord.
SIR ANDREW MCFARLANE: Shall we – logically, Mr Wolanski, it should be you next. I think that is right.
MR WOLANSKI: My Lord, my Lady, the starting point insofar as my client is concerned is that what happened in this case is illustrative of what can go wrong when the procedure for time (inaudible) is not complied with.
SIR ANDREW MCFARLANE: Yeah.
MR WOLANSKI: And you will have seen in my skeleton argument we set out why we say it mattered in this case. But the real problem here, as it seems to us, is that the issue of reporting having come up, nobody said the judge, “Well here is a draft order which outlines the restriction that we think is needed, and here is the explanation for why it is needed.”
SIR ANDREW MCFARLANE: Mmm hmm.
MR WOLANSKI: Now it is understandable how it happened in this case and we do not need to criticise those involved because it was an unusual case in that nobody planned to make a, as far as know, to come to court and make an application for a reporting restrictions order. So to that extent it is understandable why nobody thought to comply with the Practice Direction in the practice notes, which are of course – which are very well established and, and familiar to practitioners in the field.

However having arrived at the court, and one can see from the transcript how it emerged, the parties then said to the judge that some sort of reporting restriction was warranted, and it is at that point, in our submission, that the court should have stood back and taken stock and said, “Hang on, what is going on here is an application is in effect being made for reporting restrictions. How should this be, how should this be dealt with?”
SIR ANDREW MCFARLANE: Mmm hmm, yeah.
MR WOLANSKI: And at that point what we say should have happened, is that the judge should have said, “Well everyone needs to take their time, go outside and work out what it is that is being sought, whether agreement can be reached, and if it cannot be reached whether perhaps one should go back to the Practice Direction and decide whether or not there should be notification given to the wider media via Copy Direct,” and so on.
SIR ANDREW MCFARLANE: Mmm hmm.
MR WOLANSKI: And it is the failure of the court to do that that gave rise to the problems that we are all familiar with.
SIR ANDREW MCFARLANE: Yeah.
MR WOLANSKI: So what we asked the court to do in this case is to issue a reminder to explain why one is necessary to those who practice in this field that where any question of reporting restriction arises, that it is important that the formalities are respected. And in particular that a draft order is produced so that everybody knows what it is that is – that should be the focus of the debate in court. What is the order that is being sought and why is it being sought?

And I am not going to go over the history of the case, but it will – it is obvious having read the transcript that the problems that materialised in them is nobody was focussed on a draft order. Nobody really – everyone was talking at cross purposes. Nobody really knew what was available in fact and—-
SIR ANDREW MCFARLANE: It was a very short hearing that went at some speed.
MR WOLANSKI: It was. It, it went at some speed and really nobody was really able to, to (inaudible) on what they were talking about.
SIR ANDREW MCFARLANE: Yeah.
MR WOLANSKI: And, and the answer to that problem is a draft order in every case—-
LADY JUSTICE KING: A lot of noise and not much light.
MR WOLANSKI: Absolutely. And there is a solution, as I say, which is a draft order, because a draft order enables everybody in court to understand what it is that at least the applicant is seeking to do and then using that as a starting point, decide whether or not that should be implemented or whether there should be some variation to that and so on. But it can, it provides a focus which was lacking in this case.

So that is the first point and we set out in our skeleton argument why, why we say that this, that that gave rise to these particular points in this case and the – and why this court should remind those practising as to the dangers that lie in not observing the Practice Direction.

On the question of applications by journalist or indeed legal bloggers to relax reporting restrictions, it is important in our submission to draw a distinction between, on the one had, applications for reporting restrictions orders and, on the other hand, applications to relax reporting restrictions, because they are two very different creatures. And there is a Practice Direction and practice – sorry, practice guidance, a practice note in relation to the applications for reporting restrictions, and the reason why that exists – and it is set out in the guidance itself – is because of s.12(2) of the Human Rights Act.

And s.12(2) of the Human Rights Act imposes an obligation on anyone applying for an order that restricts freedom of expression, amongst other things, to put those affected by the order on notice. And the court is not allowed to make an order restricting freedom organisation expression without the (inaudible) being put on notice, except in a truly exceptional case. And that is why we have the practice guidance in relation to applications for reporting restrictions.

When it comes to applications to relax reporting restrictions, of course the same rule does not apply, because what the court is not being asked to do is restrict anybody’s freedom of expression. But instead to make an order which gives effect to people’s freedom of expression. So it is a very different kind of beast, and as your Lordship pointed out, the way in which this usually comes up is Mr (inaudible) is in court. He is the one that very often does it and it is helpful for everyone in court because he has a lot of experience.

But the way it usually comes up is that a journalist will be in court and say, “Excuse me, I would like to report this. What can I report please?” It is often not framed as an application at all. It is simply a question.
SIR ANDREW MCFARLANE: Mmm hmm, clarification.
LADY JUSTICE KING: Yeah.
MR WOLANSKI: It is clarification. But the – in fact it is an application very often because what the journalist is saying is, “I would like to report more than I usually would be able to because of the restrictions imposed by s.12 and s.97. Please can I do so?”
SIR ANDREW MCFARLANE: Yeah.
MR WOLANSKI: And, “If I can do so, please tell me what it is that I can report.”
SIR ANDREW MCFARLANE: Mmm hmm.
MR WOLANSKI: So, so that is in effect an application for relaxation of reporting restrictions, and it is done spontaneously for reasons which are obvious. Journalists are not allowed to know very much about a case, particular cases involving children before they come to court because of the restrictions on dissemination of information.
SIR ANDREW MCFARLANE: Yes.
MR WOLANSKI: So, so it is normal for journalists to turn up really knowing very little. And that being so, the next point in our skeleton argument, if this court were to give practice guidance – and we very much encourage it to – then it is necessary to bear in mind that any kind of additional formalities may give rise to problems for journalists in that such situation. And it is just not practical for journalists to be expected to fill in forms, pay fees, even draft orders, given the way in which these applications tend to be made.
SIR ANDREW MCFARLANE: Mmm hmm.
MR WOLANSKI: For good reason.
SIR ANDREW MCFARLANE: Mmm hmm.
MR WOLANSKI: So insofar as there is a practice – practice guidance given we – and we have seen and studied with some care the proposals made on behalf of Miss Tickle, and we agree because that gives the court flexibility to, to adopt a (inaudible)—-
SIR ANDREW MCFARLANE: Well in the broader context in terms of the drive to make the Family Court more transparent, in a case which should be given some degree of publicity, a case that – a particular case where when the judge has considered the reporting restrictions orders she or he decides to lift it, or vary it, that process should not be impeded by formulaic requirements to file and application or pay a fee, and anything of that sort. The journalist is in the room because they are an accredited journalist. They, in their professional judgment, decide to stand up and ask for clarification, the process should, should move on.
MR WOLANSKI: Yes.
SIR ANDREW MCFARLANE: And we should not be putting in yet a further hurdle that might prevent transparency where it turns out that that is in fact entirely justified.
MR WOLANSKI: Exactly, and just coming back to where, to where I started, which is the formalities that apply to reporting restrictions orders. Of course that is very different because a reporting restriction order is an order which, if breached, gives rise to contempt.
SIR ANDREW MCFARLANE: Yes.
MR WOLANSKI: So that is why it is very important for a draft order—-
SIR ANDREW MCFARLANE: Yeah, yes.
MR WOLANSKI: –to be produced and for there to be precision and proper focus. When, when it comes to relaxation the same does not apply.
SIR ANDREW MCFARLANE: Yes.
MR WOLANSKI: The court is not making an order which if, if breached will give rise to a contempt or any kind of sanction. It is a relaxation.
LADY JUSTICE KING: Well I think you have to be a bit careful about that submission, because of course what you are asking for is effectively a variation, a relaxation, and if there is not precision about what relaxation is permitted the danger for the journalist is that they may inadvertently put their foot on a landmine after all and be in contempt of the original order.
MR WOLANSKI: Your Ladyship is right. Your Ladyship is right. That is, that is the case. But quite often, just to try and put a, to try and put a practical into – I will give an example. A judge may say, “Well you can report everything you have heard in court today but just not the names.”
LADY JUSTICE KING: Yeah.
SIR ANDREW MCFARLANE: Mmm hmm.
MR WOLANSKI: That, that is not an uncommon situation. Or may say, “Well you can report the following five points which have been made but nothing else, because the case is too sensitive at this time,” or for whatever other reason. And that, that is normally quite straightforward and goes to the journalists who tend to come and cover these cases and who find it quite easy to, to comply with, with that kind of relaxation.
SIR ANDREW MCFARLANE: Mmm hmm.
MR WOLANSKI: When it comes to reporting restriction it can be a little different because there has to be – precision is all, if it is the contempt aspect.
SIR ANDREW MCFARLANE: Yeah.
MR WOLANSKI: And enforceability and so on. But, your Lordship, quite obviously – I am not suggesting, and would not suggest for a moment that it can be – that a relaxed reporting restriction should be vague or—-
LADY JUSTICE KING: No, what I am saying is the same danger arises to the journalist if, if you are not sufficiently precise in the relaxation, because they may inadvertently find themselves in contempt of the original order—-
MR WOLANSKI: Yes, that, that is—-
LADY JUSTICE KING: –if they are not absolutely clear about the, the extent and form of the relaxation.
SIR ANDREW MCFARLANE: Probably more – there is probably more risk of standing on a landline in relaxation cases. Where there is a reporting restriction order for it, then the journalist can see what they cannot do, and if you relax it – unless you are precise about the relaxation, quite where does it go to—-
MR WOLANSKI: Yes.
SIR ANDREW MCFARLANE: –and where is the limit.
MR WOLANSKI: The – moving on, the question of starting point versus presumption, the law is set as a starting point. There is no presumption as to how these, as to whether publicity should trump privacy or vice versa, and quite apart from the answer of paramountcy, which I will (inaudible) in a moment, that is a, in my submission, relatively straightforward point which the court will deal with by way of a Practice Direction. There is a live debate as to whether it should be deemed a presumption in any given case. It should agree a starting point and, and there are a wealth of authorities on the approach that the court should adopt when it comes to balancing rights which are engaged in freedom of expression cases and planning vision.

So that is, if you like, the easy bit. The question of paramountcy is not easy and it is perhaps even more complicated than Mr Bowen has explained, because buried in it are really two points. One is the question which, my Lord, Lord Justice MacFarlane alluded to in the Re W case, which is whether as a, as a matter of general approach the paramountcy test is applicable in cases where freedom of expression issues are being dealt with.

But separately from that there is a question which I know, my Lady, Lady Justice King, has looked at recently in another case where permission to appeal was sought, which is whether s.97(4) introduced a different test.
LADY JUSTICE KING: Yes.
MR WOLANSKI: And if so, how does that test relate to the paramountcy test? Now that is another question which it may be necessary for this court to grapple with on some occasion, and it is obviously related to the question of whether or not paramountcy is the applicable test, more generally when it comes to relaxing s.12.

We, we are not – the BBC does not think this is necessary the right case in which those rather fixed questions can be explored, not least because there is no longer any contrary case. Obviously there is a way for the court to deal with that if necessary.
SIR ANDREW MCFARLANE: Mmm hmm.
MR WOLANSKI: But it may not be that the best, the best occasion on which those issues, which will have to be resolved, should be resolved.
LADY JUSTICE KING: Mmm hmm.
SIR ANDREW MCFARLANE: Mmm hmm.
MR WOLANSKI: They are not easy questions. The final matter which, which Mr Bowen raises concerns the most recent guidance, practice guidance and whether or not that may be required to be slightly changed.
SIR ANDREW MCFARLANE: Yes.
MR WOLANSKI: And we agree with what he says about that. It seems on the face of it that there is perhaps a, it perhaps needs some further resolution for the reasons that—-
SIR ANDREW MCFARLANE: Mmm hmm.
MR WOLANSKI: Yes, so I will say no more about that. But we do, we do agree with him about that.
SIR ANDREW MCFARLANE: It was subject to a process of consultation during Sir James Munby’s time as President, and I do not think these issues were flagged up. But I have no – well we want to get this right, that there is a balance, and so I certainly understand what Mr Bowen is drawing attention to. So it may be that if we are consulting on whatever new guidance is concerned, we offer the opportunity for anyone to make observations about that which is already out there.
MR WOLANSKI: So, my Lord, that—-
SIR ANDREW MCFARLANE: Thereby opening – I am looking at Miss, trying to catch Miss Phillimore’s eye, but they are opening no doubt – a whole barrage of submissions from different sides of the transparency debate. But that is where we are and these are important matters and I would rather, rather know what people want to say and then consider it, than simply say, “Well I have issued that in December and that is what it is.” It is, it is a process that moves on and develops.
MR WOLANSKI: Yes. My Lord, that, that is all we really say at the moment. I know again Mr Messling has in mind an application for a further change to the reporting restriction order, which we do not agree with but will allow Mr Messling to, to do that.
SIR ANDREW MCFARLANE: Yes, and it is controversial then we will hear from you again. Thank you. Anything else?
LADY JUSTICE KING: No, thank you.
SIR ANDREW MCFARLANE: No. Thank you, Mr Wolanski. I had rather thought you would be sitting in the row further forward.
MR WOLANSKI: Three weeks time, my Lord.
SIR ANDREW MCFARLANE: Very good. Do not be presumptuous, that is the thing then, is it not? Now probably, Miss Earley, it is you for the local authority. Is there anything you wish to add to the position that we now understand?
MISS EARLEY: Well, my Lord, obviously the local authority are pleased that the main (inaudible) have been resolved in terms of the agreed order—-
SIR ANDREW MCFARLANE: Yes.
MISS EARLEY: –that we have asked the court to approve today. In terms of whether the court deals with this by way of guidance, Practice Directions, or with a full hearing, I am simply conscious of the letter which, I hope, is in my Lord and Lady’s bundle at 129, which was from the solicitor for the Guardian appointed in the proceedings.
SIR ANDREW MCFARLANE: Yes.
MISS EARLEY: About the potential need to involve CAFCASS legal to obtain their views in relation to the wider issues that had been raised on behalf of the journalists and the BBC. Of course they are not present today and I am acutely aware of that.
SIR ANDREW MCFARLANE: No.
MISS EARLEY: I think they will be an organisation that the court would want to hear from and take their views in respect of future guidance or reporting restrictions and relaxation.
SIR ANDREW MCFARLANE: Yes. But if we decided to go along that path, approaching CAFCASS will be one option. We have not discussed this. But it may be other bodies such as the Association of Lawyers for Children may wish to intervene.
MISS EARLEY: Yes.
SIR ANDREW MCFARLANE: We would have to look at sources to get a different voice in the room but—-
MISS EARLEY: Yes, absolutely.
SIR ANDREW MCFARLANE: Mmm hmm.
MISS EARLEY: And in terms of the general discussion that has been taking place about guidance going forwards and that the practicalities as a practitioner, I am pleased to say that it would be very helpful. What perhaps is not known to those who do not practise it out on the circuit is that His Honour Judge Levey, when he was faced with this application would have been in a very different list and would have had potentially eight, nine or ten cases before him today—-
SIR ANDREW MCFARLANE: Yeah.
MISS EARLEY: –and the particular case was listed for an issues resolution hearing. It was not listed for a final hearing and it is in that context, that judges and practitioners find themselves faced with the application of a journalist attending court—-
SIR ANDREW MCFARLANE: No, well one is very aware of that.
MISS EARLEY: Yes, there may be some in the room are not, are not of course aware of that.
SIR ANDREW MCFARLANE: Yes.
MISS EARLEY: My Lord, and that is the reality. My Lord says—-
SIR ANDREW MCFARLANE: With, with hindsight I think everyone in this court, including my Lady and I, can see what should have happened on the day.
MISS EARLEY: Yes.
SIR ANDREW MCFARLANE: But that is not to be over critical of the fact that it did not, given the pressures on the system.
MISS EARLEY: No, absolutely. My Lord has spoken briefly about the pressures on the care system for both practitioners and judges, and therefore I make that point that any guidance, any Practice Direction, in clarity for those who feel we (inaudible) be updated.
SIR ANDREW MCFARLANE: Well it would help if we had a route map for—-
MISS EARLEY: Yes, absolutely.
SIR ANDREW MCFARLANE: –journalists, for judges for practitioners.
MISS EARLEY: Practitioners. So that we do not find ourselves in that situation.
SIR ANDREW MCFARLANE: Mmm hmm.
MISS EARLEY: Is there anything else, my Lord, I can assist with at the moment?
SIR ANDREW MCFARLANE: No, thank you. I am very grateful. Yes, Mr Messling?
MR MESSLING: My Lord, my Lady, you understand that the mother’s primary concern is to be a mother to her children, to establish successfully the reiteration of her into her household and into her family, and, my Lord, I set out in a position – a short position statement which I think you have in the bundle—-
SIR ANDREW MCFARLANE: Yes.
MR MESSLING: –at 93, that paramount priority for her. But also her sense that her story has wider application and therefore her sympathy for that story to be published, so long as her confidentiality and that of her children, and the other adults in her life, is maintained.

My Lord, that, that as it were intent and that sense made its way into the first draft Consent Order, which my Lord and my Lady have at p.12 of the core bundle, which suggested at that stage that there should be a substitution of the actual country of origin of the mother, and/or her ethnicity, with a more general term that she described as “blacker.”
SIR ANDREW MCFARLANE: Yeah.
MR MESSLING: My Lord, the, as it were – as I understand it there is sympathy amongst all the parties, that if it were practical that level of confidentiality should be maintained.
SIR ANDREW MCFARLANE: Mmm hmm.
MR MESSLING: To provide that additional level of specificity in conjunction with knowledge of a particular local authority and the other factual matters which are permitted, would in my submission increase the probability of jigsaw identification and therefore the identification—-
SIR ANDREW MCFARLANE: But I have not undertaken this exercise as Judge Hess’ judgment, which is to be published. Does that specify—-?
MR MESSLING: Yes.
SIR ANDREW MCFARLANE: Yes.
MR MESSLING: My Lord, it does.
LADY JUSTICE KING: That is where I got the information from.
SIR ANDREW MCFARLANE: Yes.
MR MESSLING: And that, my Lord, my Lady, indeed, and that is why that would also have – that would also require further redaction. So, as I understand it, there is broad sympathy as it were about the merits of what I submit, but there is hostility to the practicability.
SIR ANDREW MCFARLANE: Yes, and the problem is that the specific country was mentioned in the Court of Appeal judgment and it is out there.
MR MESSLING: Yes, it was.
SIR ANDREW MCFARLANE: And so to a degree it is rather artificial now to do anything to close that down, and brackets – or not even brackets – not as artificial, it would be wrong given that it is in the public domain—-
MR MESSLING: Yes.
SIR ANDREW MCFARLANE: –to now draw it back into some form of confidentiality, confidential status.
LADY JUSTICE KING: It is the King Canute argument, is it not?
MR MESSLING: Yes, to use a slightly more prosaic image, the toothpaste is out of the tube.
SIR ANDREW MCFARLANE: Yes.
MR MESSLING: My Lord, what I, as it were, encourage is consideration of whether, albeit it is not possible to put it back in the tube, it is possible to stop it getting on to the toothbrush, and what I mean by that – my Lord, what I mean by that is that that detail to have provenance in the frontline reporting would unhelpfully add to the profile of that particular fact.
SIR ANDREW MCFARLANE: Mmm hmm.
MR MESSLING: And what I sought to—-
SIR ANDREW MCFARLANE: So what, what is the solution you say?
MR MESSLING: Well, my Lord, what I have sought to do is to see whether there is a way of navigating between not prohibiting reference to the fact, or a link to the Court of Appeal judgment. But nevertheless an embargo or a prohibition, if you want, for repetition of that particular fact in the reporting itself. My Lord furrows my Lord’s brow—-
SIR ANDREW MCFARLANE: No, it is only—-
MR MESSLING: –to consider it.
SIR ANDREW MCFARLANE: It is what I do when I am thinking. That is difficult, is it not?
MR MESSLING: My Lord, it is, yes.
SIR ANDREW MCFARLANE: Yeah.
MR MESSLING: I make no – well it would be unrealistic of me to think otherwise. My Lord, shall, shall I take you to the draft order and see whether I have made any traction?
SIR ANDREW MCFARLANE: And your, your client’s understandable fear is that those in Zimbabwe who might read – and that, I have just said, is subject to the tweeting embargo – who might read the details could identify who she is and identify members of her family who are in that country?
MR MESSLING: My Lord, that is one aspect. The other aspect is—-
LADY JUSTICE KING: But it is the local aspect, Zimbabwe and family. It is the local aspect that you were concerned about, do you say?
MR MESSLING: My Lord, both. The, the local aspect, in other words it is a fact that it enhances the prospect of identification and that then impacts upon the child, the stability of the placement, etc., the conventional arguments. But also the, the international concern, yes, as well.
SIR ANDREW MCFARLANE: Yeah.
LADY JUSTICE KING: You said the “probability” of identification. I do think you need to be careful because I hope you meant the risk of identification, because obviously if the court was satisfied of the probability of identification it would be a very different thing.
MR MESSLING: My Lady, I, I stand corrected, yes. Yes, it is my submission—-
SIR ANDREW MCFARLANE: So do you have a form of words that you—-
MR MESSLING: –it increases the risk.
SIR ANDREW MCFARLANE: Do you have a form of words that you say we should consider inserting into the draft reporting restriction order?
MR MESSLING: My Lord, yes. If I take you to – (After a pause) – forgive me, I have momentarily lost the—-
SIR ANDREW MCFARLANE: Do not worry. Page 118 of the, of – the order proper—–
MR MESSLING: Page 118.
SIR ANDREW MCFARLANE: –starts at p.118 of the little bundle we have got.
MR MESSLING: I seem, I seem to have extracted it from my—-
LADY JUSTICE KING: (After a pause) It always happens with the most important document.
MR MESSLING: Yes.
SIR ANDREW MCFARLANE: Does anyone else have a copy?
MR MESSLING: My Lord, forgive me. May I, may I deal with it by way of internal pagination?
SIR ANDREW MCFARLANE: Yes.
MR MESSLING: Oh, no, I have found it.
SIR ANDREW MCFARLANE: You had it open and ready for—-
MR MESSLING: I have found it. Page 119 first of all.
SIR ANDREW MCFARLANE: Yeah.
MR MESSLING: So my Lord has para.3(a), (b) and (c) and I propose a consideration of a new para.(d), the country of origin of A in relation to A, B—-
SIR ANDREW MCFARLANE: Hang on, sorry. The country of origin?
MR MESSLING: Of A.
SIR ANDREW MCFARLANE: Yeah.
MR MESSLING: In relation to A, B, R or D.
SIR ANDREW MCFARLANE: So this order (inaudible) the publishing of—-
LADY JUSTICE KING: Is that not very difficult? Because let us take, for example, a journalist is writing a piece about the case and what has happened. That journalist may want to put quotes from the appeal judgment or Judge Hess’ judgment. So is what you are saying that whilst you accept those judgments cannot themselves be redacted, you cannot put the genie back in the bottle, however if they are seeking to quote from those judgments they have to redact them?
MR MESSLING: My Lady, I draw a distinction between Judge Hess’ judgment and the Court of Appeal’s. Judge Hess’ judgment is still capable of redaction before it is published.
LADY JUSTICE KING: Well – but that is a nonsense, Mr Messling, because how do we manage that? Because clearly a large proportion of the Court of Appeal judgment information, which you now accept cannot be redacted, comes directly from the – in parts are quotes from Judge Hess’ judgment.
MR MESSLING: Well, my Lady, I, I—-
LADY JUSTICE KING: You cannot Judge Hess if they are not redacted in the Court of Appeal, and then ask people to do a bit of redacting of the Court of Appeal if a last minute appeal (inaudible).
MR MESSLING: Well, my Lady, I accept entirely the difficulty with the Court of Appeal judgment. But, but as a matter of practicality, practicability we are intending to embark upon an exercise of redacting in any event Judge Hess’ judgment.
SIR ANDREW MCFARLANE: So the Court of Appeal judgment in the opening paragraphs, my Lord, in the course of her narrative—-
MR MESSLING: Yes.
SIR ANDREW MCFARLANE: –drawn from Judge Hess, simply states the country of origin.
MR MESSLING: Indeed.
SIR ANDREW MCFARLANE: Are there later references to the country in the Court of Appeal judgment which are direct quotes from Judge Hess’ judgment? I do not – I mean I did not read it for that purpose but I do not—-
MR MESSLING: My Lady certainly refers, for example at para.47, that springs to mind in Judge Hess’, but that paragraph does not itself contain reference to the matter of the (inaudible).
SIR ANDREW MCFARLANE: Wait a minute. If, if that is right, your submission is that there is still the opportunity to redact Judge Hess’ judgment to remove any fresh—-
MR MESSLING: Yes, yes.
SIR ANDREW MCFARLANE: –reference to the country which is not otherwise a direct quotation in the Court of Appeal judgment.
MR MESSLING: But it still leads to the problem with the Court of Appeal judgment.
SIR ANDREW MCFARLANE: Mmm hmm.
MR MESSLING: I understand, yes. I accept that.
SIR ANDREW MCFARLANE: Yeah.
MR MESSLING: So that is, as it were, the – my Lord, may I digress momentarily to two matters that are not controversial as I understand it, and they are supplemental to – my Lord, has in, in capitals in each case—-
SIR ANDREW MCFARLANE: Yes.
MR MESSLING: –and then (a), (b), and, my Lord, we ask you to include two further provisions at (c), “Identifies or may identify R as a child who has been the subject of allegations of abuse.”
SIR ANDREW MCFARLANE: Yeah, yes.
MR MESSLING: And (d), “Identifies or may identify R as a child who has been removed from her mother.”
LADY JUSTICE KING: Sorry, has the case not been reported?
SIR ANDREW MCFARLANE: That is what, that is what the case is about.
LADY JUSTICE KING: You are saying that – but you cannot – so you are saying that any journalist who wants to write about this case cannot identify that this child has been subject to allegations of abuse, i.e. the threshold, or that the child spent any time in care?
MR MESSLING: No, my Lady, with respect as I understand it, those provisions were designed to limit, as it were – if, for example, R were reported upon by her full name in respect of winning a sports race or something like that, then that will still be permissible because that, that is not, as it were, bound by any of the terms of that. And I am simply widening the, the narrow focus—-
SIR ANDREW MCFARLANE: But is that not really covered by (a), by (a) in this section? Identifies R, on that case, as connected with or involved in, or having been involved in these proceedings.
MR MESSLING: My Lord, simply that if, if, for example, there were not references to the proceedings but they were simply referenced to the removal or to the allegation, that would not be covered by that.
SIR ANDREW MCFARLANE: They could be misread in the way my Lady reasonably understands it, or understood it. Did you say these are not controversial? So they are agreed by those acting for—-
MR MESSLING: My Lord, we have – we had some discussion before we came in. The impression I had was that they were either not controversial or not likely to be so.
SIR ANDREW MCFARLANE: Mr Bowen, what is – just to – excuse me, Mr Messling, I just—-
MR BOWEN: I think after it had been explained to me what was intended I did not have an objection, and as I understand it what s.12 does is prohibits the identification of a child in relation to any proceedings.
SIR ANDREW MCFARLANE: Yes.
LADY JUSTICE KING: Mmm hmm.
MR BOWEN: And what this does is to prohibit identification of the child in some other context other than the proceedings as having been subject to some form of abuse. So it, it is a belt and braces way of catching—-
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: –and if you like supplementing s.12, because s.12 in some respects is too narrow. I think that is right.
SIR ANDREW MCFARLANE: Yes. So we know in this, the detail of this order has now been drawn. Under 6(b), as we dealt with earlier, that it is contemplated that the mother will speak outside the court proceedings to journalists—-
MR BOWEN: Yes, yes.
SIR ANDREW MCFARLANE: –and inevitably part of her story is going to be, “My child was”–
MR BOWEN: But the child will not be identified. That is the point. Is that you – there is nothing wrong with writing about R.
SIR ANDREW MCFARLANE: Yeah.
MR BOWEN: What is wrong is to identify R as being somebody – and, you know, by naming them as being involved, as having been—-
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: –the victim of some form of abuse—-
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: –outside of the Children Act proceedings, because that would not necessarily be caught by s.12.
SIR ANDREW MCFARLANE: No.
MR BOWEN: That, that is the point. I think – that is what I understand. Mr Wolanski, I am sure, will explain it better than me if it is necessary but I think that, that is the position. So section – so to the extent that it is belt and braces, it is not preventing reporters—-
SIR ANDREW MCFARLANE: So you, you—-
MR BOWEN: –writing about the fact that R has been—-
SIR ANDREW MCFARLANE: On, on that basis you do not object to these two additions?
MR BOWEN: No, but I think it could be better worded because—-
SIR ANDREW MCFARLANE: Yeah.
MR BOWEN: –your Lordship’s, and your Ladyship’s response was exactly the same response I had when it was first suggested to me.
SIR ANDREW MCFARLANE: Yes, yes.
LADY JUSTICE KING: Okay.
SIR ANDREW MCFARLANE: Mr Wolanski, does—-?
MR WOLANSKI: I think the problem is the word “identified,” and we, I am sure, can come up with a better word. But we agree with Mr Messling. What, what he is seeking to do, quite properly—-
SIR ANDREW MCFARLANE: Yes.
MR WOLANSKI: –is to prevent a report, for example, which says, “Here is Child R. Here is a picture of Child R.” It says nothing at all about the proceedings. This child was the subject of allegations of abuse, or whatever it might be.
SIR ANDREW MCFARLANE: Mmm hmm.
MR WOLANSKI: Now as this order is currently drafted that would not be prevented.
SIR ANDREW MCFARLANE: Right.
MR WOLANSKI: But what Mr Messling wants to do is to prevent this and we agree he should be able to, and that—-
SIR ANDREW MCFARLANE: Right, so it is a matter of drafting.
MR WOLANSKI: It is just a matter of drafting.
SIR ANDREW MCFARLANE: All right, okay. Good, well I think if that is subject to us being satisfied with the drafting, we see the merit of what you are submitting.
MR MESSLING: Yes. My Lord, I read it in the context of (a), (b) and (c).
SIR ANDREW MCFARLANE: Yes.
MR MESSLING: As it were, the refinement of that.
SIR ANDREW MCFARLANE: Whilst there is drafting going on, the numbering in para.3 is (a), (b), (c), anyway.
MR MESSLING: Yes.
SIR ANDREW MCFARLANE: And so there is a need to somehow identify these further subparagraphs in a different way.
MR MESSLING: Mmm hmm.
SIR ANDREW MCFARLANE: Right, good.
MR MESSLING: My Lord, thank you. I turn over the page with trepidation to 120, because this is where I have to grasp the nettle at para.16, what is not disputed by this order, and find a form of words which enables any reporting to refer to the existence of and link, and if necessary a link to the Court of Appeal judgment, but does not in the article itself repeat that sensitive fact.
SIR ANDREW MCFARLANE: Yes.
MR MESSLING: And so I have respectfully wondered whether it may be possible to split para.6(f) into two, and to, as it were, divide the reporting and publishing of the details of the judgment and place that in one paragraph, and then have a separate paragraph for referring to, or providing any link to the judgment of the Court of Appeal in a separate paragraph.
SIR ANDREW MCFARLANE: Yes.
MR MESSLING: So paragraph—-
SIR ANDREW MCFARLANE: So, so journalists would be able to report the fact that there had been a Court of Appeal hearing—-
MR MESSLING: Yes.
SIR ANDREW MCFARLANE: –but not provide readers with the link – readers who wished to investigate might find the link, but you would not lead them to it. Is, is that the point?
MR MESSLING: My Lord, I certainly would not resist that formulation, although I had rather thought—-
SIR ANDREW MCFARLANE: No, no, I am just trying to work out what it is you are saying
MR MESSLING: My point—-
SIR ANDREW MCFARLANE: –you are saying.
MR MESSLING: My Lord, forgive me. I had rather thought that, that there ought to be permitted reference to, or providing the link.
SIR ANDREW MCFARLANE: Mmm hmm.
LADY JUSTICE KING: But if reference to – they are allowed to report or publish details but they are not allowed to make any reference to it?
MR MESSLING: My Lady, there would be—-
LADY JUSTICE KING: That is not an order.
MR MESSLING: My, my concern is, is a modest, modest addition which is to reduce the profile of this issue on the frontline article.
SIR ANDREW MCFARLANE: Mmm hmm.
MR MESSLING: If para.(f) were to say, “Save for those” – forgive me – if it was simply to say, “Reporting or publishing any details of the judgment,” but the, but the words, “providing any link” – forgive me – the words, “or referring to, or providing any link” were deleted. So in other words all of this is subject to para.3. Paragraph 3 in my draft now contains that prohibition upon the country or origin.
SIR ANDREW MCFARLANE: Mmm hmm.
LADY JUSTICE KING: I am sorry, I really do want to be difficult and I want to give the mother as much protection, or the mother and the child as much protection as possible. But how is any journalist going to be able to report this and do what they want to do with this case, if they not allowed to refer or provide a link to the Court of Appeal judgment?
MR MESSLING: So—-
LADY JUSTICE KING: I mean they just cannot, because as I understand it from reading the position statements and the information that has been sent in by the various media organisations, what they are saying is the touchstone for resolution of this case, which led to the return of this child to the mother, was what happened in the Court of Appeal.
MR MESSLING: My Lady, if I, if I—–
LADY JUSTICE KING: So how can we possibly agree to something that says that the, that they cannot refer or provide a link to that judgment?
SIR ANDREW MCFARLANE: But the, the reason that we are in this position of your client being very concerned and you making submissions, is the fact that the Court of Appeal judgment contains the name of the country.
MR MESSLING: Yes.
SIR ANDREW MCFARLANE: At the Court of Appeal was she legally represented?
MR MESSLING: Yes.
SIR ANDREW MCFARLANE: The draft judgment will have been circulated for any observations to be made by the parties as to any redaction or alteration, and again with hindsight it is easy to be critical – there has been a process that has allowed her to nip this in bud at that stage and it was not. It went out there and it would be very difficult, it seems to me now, to alter that situation, and indeed in the matter of public policy, the judgment is out there.
MR MESSLING: Yes.
SIR ANDREW MCFARLANE: And to take steps now for this court to somehow obfuscate what the public may read or hear in relation to the case in order to prevent them seeing that which is public, seems to me rather questionable.
MR MESSLING: My Lord, may I just, as it were, put the paragraphs before you that I propose?
SIR ANDREW MCFARLANE: Mmm hmm.
MR MESSLING: The, there would be a paragraph that says, “Referring to or providing any link to the judgment of the Court of Appeal.” In other words that is not restricted. But it would say at the end of that, “Even though this report does contain reference to the country of origin.” So there will be an explicit acknowledgement that referring to or providing the link was (inaudible) even though it provides reference to the country of origin. That would be one paragraph.

The other paragraph would be, would be as it is, “Reporting or publishing any details, or referring or providing” – sorry, “Reporting or publishing any details that would, as it were, be bound by the overarching paragraph at the start, which is subject to para.3.” So the effect of that would be, yes, providing a link or referring to the existence of can be done. But repeating that detail in the report itself cannot be done.

My Lord, I accept the difficulty that that poses, and my Lord has asked about the Court of Appeal response to that. As I understand it no representations were made at that stage or subsequently, and nothing yet has happened of an adverse nature as a result of that information being in the public domain.
SIR ANDREW MCFARLANE: Yeah.
MR MESSLING: But my—-
LADY JUSTICE KING: Well I think it is one of the things we would have to consider, would we not? Because we still have to think of the boundaries.
SIR ANDREW MCFARLANE: Mmm hmm.
MR MESSLING: Yes.
LADY JUSTICE KING: And of the things we would have to consider about is, when you are asking for this quite draconian amendment—-
MR MESSLING: Yes.
LADY JUSTICE KING: –what is the risk of jigsaw identification—-
MR MESSLING: It, my Lady—-
LADY JUSTICE KING: –by reference in a multicultural, multinational area like Southampton, of, of this reference to a country of origin—-
MR MESSLING: My Lady, I simply—-
LADY JUSTICE KING: –justified? We, we have had no submissions. We have not been given any information, statistical or otherwise, or why it is said that the reference to a very large country like Zimbabwe, in the context of this case, provides sufficient risk that we should make the order you seek?
MR MESSLING: My Lady, I simply ask you to take into account, one, that there is simply – to the merits of what I seek, and secondly that the readership of the Court of Appeal judgment is likely to be more limited than that which will read—–
LADY JUSTICE KING: A hypothetical centre point.
MR MESSLING: –will read the, the media coverage of this case in other publications.
LADY JUSTICE KING: Understood.
MR MESSLING: Thank you. My Lord, I think I have exhausted the submissions I have—-
SIR ANDREW MCFARLANE: Well you have not exhausted us, Mr Messling. I am keen for more but I think you have probably made the point very clearly. Are there any other separate submissions you would wish to make?
MR MESSLING: My Lord, on the other matters that you have been canvassing, the mother’s position is, is simply as set out in the documents that I have produced.
SIR ANDREW MCFARLANE: Yes.
MR MESSLING: Which is that she has a sympathy for all of that, but her primary concern is as I have suggested.
SIR ANDREW MCFARLANE: Yes, thank you.
MR MESSLING: Thank you.
SIR ANDREW MCFARLANE: Thank you. Mr Bowen, anything in response to Mr Messling?
MR BOWEN: There were just a couple of points I wish to make.
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: But I think as far as Mr Messling’s submission was concerned in relation to the amendment—-
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: –I know Mr Wolanski had something he wanted to say about that and I wonder whether he might—-
SIR ANDREW MCFARLANE: Right, well I will come to him. I will not come now to him.
MR BOWEN: Yeah, he can deal with that point. All I will say is that we, we have every sympathy with the point that Mr Messling is making and indeed Miss Tickle had agree initially that that could be excised from the Court of Appeal judgment, as you have seen.
SIR ANDREW MCFARLANE: Mmm hmm.
MR BOWEN: But practically speaking that is not possible. While she and Miss Burg(?), and I am sure any of the other journalists here, would be perfectly happy not to mention that in their reporting of the judgment, the court cannot make an order—-
SIR ANDREW MCFARLANE: No.
MR BOWEN: –that, that sort of binds some people but not others.
SIR ANDREW MCFARLANE: No.
MR BOWEN: And so regretfully, as a matter of practicality, it is just not possible.
SIR ANDREW MCFARLANE: No, and it will be left to the good professional sense of the journalist as to whether it needed to be mentioned—-
MR BOWEN: Indeed.
SIR ANDREW MCFARLANE: –and if not, whether it should be.
MR BOWEN: And this is what interestingly, a very similar situation was confronted by MacDonald J in the H v. A case, when Mr Farmer when off and put the details in that could be published and was able to identify the individual and then came back to MacDonald J. But MacDonald J said, “Well it is out there and I am going to carry on – the judgment has to be – sorry – my judgment has to be reported in the way I have already ordered. There is a very limited risk of identification and in any event the balancing exercise comes down in favour of publication,” and that would be our submission.
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: There were just two other points that I wanted to, to briefly make if I may. It is in response firstly to what Mr Wolanski submitted. He, he – just as a matter of factual background, I think he suggested that the applications had not been anticipated.
SIR ANDREW MCFARLANE: Well there had been emails.
MR BOWEN: There had been.
SIR ANDREW MCFARLANE: Yes, yes.
MR BOWEN: There had been emails a month earlier in one case.
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: So, so the judge had two applications, two emails saying, “We want to report this case.”
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: So it certainly did not take the judge by surprise.
SIR ANDREW MCFARLANE: No.
MR BOWEN: The second point is in relation to Mr Wolanski’s suggestion that there is a stark difference between an application to relax reporting restrictions and an application for reporting restrictions. In my respectful submission it is likely that as soon as the court grapples with this question, it is going to have to be considering both in almost all cases.
SIR ANDREW MCFARLANE: Mmm hmm.
MR BOWEN: I mean I will give you, by way of example, under s.12(2) of the 1960 Act, an order made by the court is not caught by the provisions of s.12(1). Now an order is often going to contain detail that, that may need to be restricted, so of course immediately as soon as the order is being redacted in any way a reporting restriction order is being made.
SIR ANDREW MCFARLANE: Mmm hmm.
MR BOWEN: Similarly, if an order needs to be made in relation to a child’s identity going beyond the conclusion of the proceedings, s.97(2) would not bite. So, so one is often going to have both needing to be considered, and my respectful submission is that you cannot – and I am not sure that Mr Wolanski is saying this – but just to be clear. We cannot have a situation where as soon as it becomes clear something more is being sought by one of other party, that everyone has got to then adjourn while a formal application – while a full order is served on all media organisations under the Copy Direct service, as required under the Practice Direction.

What is required is a pragmatic approach of all the parties, including the journalists, to sit down, to draft something that everybody can identify as being what is sought, identify what is in dispute so that can then be put before a judge to, to rule on. And we would suggest that nothing more than that should be required by way of formality.

As far as what Miss Earley had to say about the very understandable concerns of, of busy practitioners, busy judges, of course that is, that is right. But these are hugely draconian orders that are being made by judges, and in any event judges now should be anticipating in every case that they may need to publish—-
SIR ANDREW MCFARLANE: Well it is to be hoped that most—
MR BOWEN: –their judgments.
SIR ANDREW MCFARLANE: –most judges have a copy of this book.
MR BOWEN: Well—-
MISS EARLEY: At least Judge (inaudible) herself, because she unlike my Lord, did not have one.
MR BOWEN: I record for the record that my Lord is referring to Transparency in the Family Court Publicity and Privacy in Practice, by Judy Doughty, Lucy Reed and Paul Mcgrath.
LADY JUSTICE KING: But, Mr Bowen, you—-
SIR ANDREW MCFARLANE: Precisely so.
MR BOWEN: I am not selling (inaudible).
LADY JUSTICE KING: –you referred to it extensively in your, in your skeleton argument that only one of the judges had a copy. That is very sad.
MR BOWEN: And quite often, quite often.
SIR ANDREW MCFARLANE: Direct fishing—-
MR BOWEN: So—-
SIR ANDREW MCFARLANE: –it takes place on the Bench.
MR BOWEN: So, so we, all we—-
SIR ANDREW MCFARLANE: No, but I did – these are important – the, the – what has been achieved by the responsible bringing of this appeal, as I see Miss Tickle’s action being, is to flag up the need for this to be given far greater prominence for judges up and down the land to understand if they get one of these it has to be dealt with properly, and in accordance with a, a route map. The scales have to be brought out on each occasion.
MR BOWEN: Indeed.
SIR ANDREW MCFARLANE: You know, so it is—-
MR BOWEN: And perhaps, perhaps for all the judges to be issued formally with a copy of Transparency in the Family Court, by Doughty, Reed and Mcgrath.
SIR ANDREW MCFARLANE: There we go.
MR BOWEN: I am not on a commission. I just repeat that again.
SIR ANDREW MCFARLANE: No, no.
MR BOWEN: My Lord, my Lady, unless there is anything else I can assist you with?
SIR ANDREW MCFARLANE: No, that is very helpful.
MR BOWEN: Those are my submissions. I do not know if Mr Wolanski wants to add anything to that.
SIR ANDREW MCFARLANE: Mr Wolanski, do you have—-?
MR WOLANSKI: No, three is nothing substantial. But on the – the court has the point – on the application by Mr Messling for a reporting restriction which somehow binds some information in the Court of Appeal judgment, it is not a (inaudible).
SIR ANDREW MCFARLANE: No, no. Thank you.
MR WOLANSKI: Just on – as a final point, on the question of what happens when an application is made to relax reporting restrictions, in most cases there will not need to be an additional reporting restriction made when that happens, because the automatic reporting restrictions already prevent the reporting of pretty much everything, certainly in a child case.
SIR ANDREW MCFARLANE: Mmm hmm.
MR WOLANSKI: So if a journalist says, “I would like to report some of the case,” and the judge says, “Yes, you can, you can report what happened today,” there is no need for a reporting restriction because other than what the judge has allowed, reporting is prohibited.
LADY JUSTICE KING: Yes.
MR WOLANSKI: So in most cases we would anticipate that there will not be a need for additional reporting restrictions when an application to relax is made. Every case is different but in the majority of cases it would be—-
SIR ANDREW MCFARLANE: Mmm hmm.
MR BOWEN: My Lord, my Lady, it would be very helpful if we could have a ruling on Mr Messling’s application because then we can agree the terms of the order to circulate
SIR ANDREW MCFARLANE: Well you need to have a rule on Mr Messling’s application.
MR BOWEN: Yes.
SIR ANDREW MCFARLANE: So what I propose we do is we will retire for a very short time, just to clarify whether there is to be a hearing in March on the, the welfare of the child issue.
MR BOWEN: Yes.
SIR ANDREW MCFARLANE: And to determine Mr Messling’s application. Those, those are the two things I think we have to consider.
MR BOWEN: Yes.
SIR ANDREW MCFARLANE: Thank you.

(A short break)

(For judgment, see separate transcript)

MR BOWEN: My Lord, my Lady, thank you. What I propose, unless any of my colleagues disagree, is that we will formulate a final version of the order that is agreed—-
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: –that reflects the order that your Lordship and your Ladyship have made, and similarly the – His Honour Judge Hess’ judgment, come up with a final version of that.
SIR ANDREW MCFARLANE: Yes.
MR BOWEN: Hopefully there will not be any disagreement between us about any of the details, and then we will forward the redacted version and the unredacted version of His Honour Judge Hess’ judgment plus the final version of the draft order to your Lordship and your Lordship’s clerks.
SIR ANDREW MCFARLANE: That seems to me very sensible and we are grateful to you, that is if everyone else agrees. I do not think we have your skeleton electronically. Could you also send us an electronic copy of your skeleton?
MR BOWEN: Of course, I will. Would you prefer that in pdf or in Word?
SIR ANDREW MCFARLANE: In Word, please.
MR BOWEN: Certainly, my Lord.
SIR ANDREW MCFARLANE: Once again we are very grateful to you and indeed to Miss Tickle for raising this matter.
MR BOWEN: Thank you, my Lord.
SIR ANDREW MCFARLANE: Thank you.
(12.26 p.m.)
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