A -v- Ward
Neutral Citation: EWHC 16 (Fam)
High Court of Justice (Family Division)
Judgment was given by Mr Justice Munby on Jan 8th, 2010.
Judgment
In a case where parents had been the subject of an inquiry by the local authorities into how their child sustained injuries, and who wished to publicise their experience, the experts involved in the case sought to have their anonymity maintained.
The court ruled that there were powerful arguments, founded in the public interest, for denying expert witnesses anonymity.
Background
The child, William Ward, was born on April 21st, 2005. In July of that year he was discovered to have fractures of his right tibia. As a result on December 16th Cambridge County Council (CCC) began care proceedings, which took place before Judge Plumstead in the county (circuit) court.
The parents were unable to identify any reason for William’s injuries, and hypothesised that his foot may have become trapped between his cot and their bed, which was beside it, and he fractured his leg as he pulled his foot free.
After hearing their evidence and that of expert witnesses, Judge Plumstead found in favour of the parents and refused to make a care order.
In making her decision she said that the possibility that the baby caused the injury himself was established; the parents’ evidence had not been shaken and there was no cogent evidence they had injured their son.
The doctors who treated William, the social workers and the expert witnesses were anonymised in her published judgment.
The BBC sought the assistance of the parents in making a programme about care orders, and the High Court gave permission for the identification of the family, the child, the children’s guardian, the local authority, the hospital and the constabulary.
However, the social workers, the police officer, some of the treating clinicians and the expert witnesses sought anonymity, and at an early hearing Mr Justice Munby granted an interim contra mundum (against the world) injunction preventing their identification, to expire after 28 days.
A number of the clinicians and expert witnesses sought its extension, which was granted pending a full hearing.
The county council also sought a similar injunction to protect the anonymity of the social workers.
Two issues came up at the hearing: the application for contra mundum injunctions regarding the identification of the clinicians, the expert witnesses and the social workers and an application from the parents to “disapply” Section 12 of the 1960 Administration of Justice Act, restricting the publication of the facts and evidence of a case heard in private.
Mr and Mrs Ward’s case was that they wished to be able to speak publicly about their experience of the child protection system, and in order to do so needed to be able to make all the facts of their case known, including the expertise and level of authority of the clinicians.
They argued that it was necessary for doctors to consider a third category alongside “accidental” and “non-accidental” injury, that of truly unexplained injuries.
The doctors said that they had understood they were participating in the care proceedings in accordance with the “normal rules of engagement” which were that all correspondence, reports and evidence would be treated as confidential to the court.
They said that if there was a likelihood that doctors involved in care proceedings could be subjected to “trial by media” there would be a reluctance to give evidence at all.
The expert witnesses made similar points, giving examples of how paediatricians involved in child protection work were being targeted and vilified in the media and on the internet.
The county council also expressed concern for social care staff and child protection in general if those engaged in the “front line” felt they could be named and vilified in every case.
Decision
Mr Justice Munby said the crucial statutory phrase relating to Section 12 of the 1960 Act was “information relating to proceedings before court sitting in private”.
A document generated for a purpose other than the court proceedings themselves were not covered by the prohibition on publication, even if they were lodged with the court or annexed to a witness statement.
Thus it was not a contempt of court to publish a document about a child’s welfare, even if such a document was lodged with the court, if no reference was made to the court proceedings.
He stressed the difference between public law proceedings, such as care proceedings, and private law proceedings, involving a family in dispute. Only a court can make a care order or place a child for adoption, he pointed out.
Such orders “involves a massive intrusion by the State – both the State in the guise of the local authority and the State in the guise of its judicial authorities – into the quintessentially private life of the family . . .
“Orders of the kind which judges of this Division are typically invited to make in public law proceedings are amongst the most drastic that any judge in any jurisdiction is every empowered to make.”
The involvement of those seeking here to preserve their anonymity was essentially as witnesses, and as witnesses giving evidence in their professional capacities.
Their evidence was not about their own private affairs, but about other people, he said.
“The workings of the family justice system and, very importantly, the views about the system of the mothers and fathers caught up in it are . . . matters of public interest which can and should be discussed publicly,” he said.
This was part of a wider debate about transparency in family proceedings, he said, in a context of decreasing confidence in some quarters in the family justice system, too much of the time based upon “ignorance, misunderstanding, misrepresentation or worse”.
The remedy to such ills was not the enforced silence of judicially-enforced anonymity, but rather the disinfectant power of exposure to forensic sunlight.
There was a general public interest in knowing the identity of an expert witness, particularly where their opinions underpinned judicial decisions.
In relation to the clinicians, there was no principle according to which their identity should be withheld, and they were generally named in Law Reports.
The same applied to social workers. While acknowledged, the danger of the vilification or targeting of such practitioners, he said it was not so great as to outweigh the very powerful arguments in favour of denying them anonymity.
He also pointed out that, were criminal proceedings to follow an injury to a child, there would be no anonymity for the clinicians and the expert witnesses.
He refused to grant the contra mundum orders.
The full judgment is available on www.familylawweek.co.uk