Many of our readers may be familiar with the decision of the President of the High Court’s Family Division, Sir Andrew McFarlane (the President), handed down 23 June 2021 refusing the applications made by parents in the case for the discharge of the reporting restriction order (RRO) in their respective cases. The President directed that the RROs in each case be amended to reflect the changed position following the death of the children (Zainab Abbasi and Isaiah Haastrup) and be reissued on the basis that they will remain in force “until further order”.
The Court of Appeal (CoA) gave permission to parents to appeal the President’s decision on 24 May 2022 on grounds that the application raised issues of public importance and that there was a compelling reason for the appeal to be heard.
Background
As the President noted in his judgment, “Each of the children …. were the subject of end-of-life proceedings under the inherent jurisdiction of the High Court, in which the issue was whether life-support should be withdrawn from them. Tragically each of the two children died; Zainab Abbasi dying after the issue of proceedings but before the court could conduct a substantive adjudication, and Isaiah Haastrup dying following the removal of life-sustaining ventilation at the conclusion of a full legal process including an application to the Court of Appeal. In both cases, widely drawn RROs were made during the proceedings with the consent of, or at least without opposition from, the children’s parents. Each of the two RROs is of unlimited, open- ended, duration and each purports to cover all those who are employed by the relevant NHS hospital trust and who played any part in the provision of care or treatment to the child. Now, each of the two respective sets of parents seeks to be released from the RRO so that they may speak publicly about their experiences and, in doing so, be free to identify NHS staff who were involved in caring for their child. By coincidence the two applications were made within a short time of each other. Whilst the factual circumstances underlying each case are inevitably different, the same legal issues largely arise. The two cases have therefore been heard together with the agreement of all parties”.
Position of the parties before the President
The position of each of the parties at the hearing before the President was as follows: both sets of parents sought orders immediately discharging the RRO applicable to their child’s case. The two relevant NHS hospital trusts (the Trusts), jointly represented by counsel before this court, opposed the discharge applications maintaining that, with some contextual amendment to reflect the circumstances as they now are, following each child’s death, the RROs should remain in force indefinitely. Alternatively, the Trusts made a cross-application for the court to make a new RRO in each case if the parents are successful in their discharge applications. The Court also had before it written and oral submissions on behalf of ‘PA Media’ (formerly The Press Association) as intervenors supporting the Trusts in asserting that the court must have jurisdiction to regulate and, if necessary, prevent the publication of information identifying individual clinical staff and, on the facts of these two cases, submitted that neither application for the discharge of the injunctions was made out.
Permission to Appeal
Handing down judgment, the Rt. Hon. Sir Geoffrey Vos ruled that “At the very least there is a good reason for the Court of Appeal now to consider the legal position affected given the appropriateness of a general order allowing all treating staff of a particular NHS Trust anonymity in these circumstances…it is time for the Court of Appeal to consider the questions raised by these two very sad cases, by A v Ward and by Re M, in the current context including the new approach to transparency in the Family Division. For these reasons I will allow permission to appeal …”.
A v Ward [2010] EWHC 16 (Fam) is the sequel to BBC v Cafcass [2007] EWHC 616 (Fam) [2007] raising in relation to family practice and procedure, the issue of the anonymity of professional witnesses in care proceedings under Part IV of the Children Act 1989: specifically, whether three categories of witness – medical experts, treating clinicians and social workers – should have their anonymity protected by contra mundum (against the world at large) injunctions. Munby J (as he then was) concluded that the applications for anonymity should be rejected partly because any expectation of anonymity relied on is not justified in either principle or practice as the law reports contain the names of many expert witnesses; and also because there are “powerful arguments, founded in the public interest, for denying expert witnesses anonymity” extending that principle also to anonymity of clinicians.
The President in his judgment handed down in June 2021, said:
“I would, with every due respect to Sir James Munby, go further and record that I do not agree with his evaluation of the situation as it was even in the context of 2014. In particular, I would dissociate myself from the following passage in A v Ward, which, in my view, is simply wrong:
‘One can sympathise with conscientious and caring professionals who cannot understand why they should be at risk of harassment and vilification for only doing their job – and a job, moreover, where participation in the forensic process is not, as it were, part of the ‘job specification’ as in the case of social workers and expert witnesses. But the fact is that in an increasingly clamorous and decreasingly deferential society there are many people in many different professions who, however much they might wish it were otherwise, and however much one may deplore the fact, have to put up with the harassment and vilification with which the Internet in particular and the other media to a lesser extent are awash.’
Why should the law tolerate and support a situation in which conscientious and caring professionals, who have not been found to be at fault in any manner, are at risk of harassment and vilification simply for doing their job? In my view the law should not do so, and it is wrong that the law should require those for whom the protection of anonymity is sought in a case such as this to have to establish ‘compelling reasons’ before the court can provide that protection”.
Whilst the CoA has the opportunity to clarify the diametrically opposed views of the past and current President of the High Court’s Family Division, the case does raise important issues for families and clinicians alike in circumstances where neither choose to be engaged in legal proceedings and are thrust into the legal arena either because their child is unwell or they happen be the clinician with responsibility for the care and treatment to that child. Both have little experience of engagement with Court processes or the media.
Whilst understanding the benefits of the reporting to increase the public understanding of the challenging nature of the work done by clinicians, there is a distinction to be made between the professional approach generally taken by mainstream media vs. the relatively unregulated nature of social media with no right to respond when events are reported inaccurately, not to mention vilification by the public.
In a world where reporting by way of social networks is the preferred way of reporting, but with little regulation and control, the issues in this appeal give rise to important consideration of the balance of rights (Articles 6, right to a fair trial; Article 10, freedom of expression and Article 8, respect for private and family life) for the public at large and NHS bodies, so watch this space.
For further information, please contact:
Kiran Bhogal, Head of Health Advisory, Hill Dickinson
kiran.bhogal@hilldickinson.com
