May 30, 2012


Filed under: Secret family courts — Granarchist @ 2:35 am


Re. X, Y, Z (Morgan v A Local Authority) [2011] EWHC 1157 (Fam)

Case date: 11/05/2011

Court: High Court

Area/s of law: Reporting restrictions

The President of the Family Division ordered the disclosure of an expert’s report, prepared for the purpose of care proceedings, because it would contribute to an informed debate about the Family Justice System. Importantly, he also advocated such disclosure to become routine practice going forward. 


Coventry City Council commenced care proceedings in 2008 in respect of three children, X, Y and Z. It subsequently applied to withdraw those proceedings, having realised that it could not meet the threshold required for a care order. Bellamy HHJ, sitting as a High Court Judge, granted permission to withdraw the proceedings. In his judgment, he was critical of the local authority and of the report prepared by the expert, Dr M, which had been relied upon by Coventry City Council to advance a case of factitious or induced illness (FII). 

Brian Morgan, a freelance journalist, applied for an order permitting him to name Dr M. In his application, Mr Morgan was supported by the mother of X, Y and Z, who advocated naming Dr M as a means of preventing other families being put through the same experience as her own. The Royal College of Paediatrics and Child Health was granted permission to intervene and its President, Prof. Stephenson, put in a statement. Dr M’s position was that, if his name were to be made public, he wanted his rebuttal of the Judge’s criticisms to be published. He had not given oral evidence in the child care proceedings and so had not had the opportunity to defend his report. 

Disclosure of expert’s name and report ordered to further “informed debate” 

The President, Wall LJ, did not grant Dr M anonymity and ordered that his report (anonymised to protect the family) may also be published. 

The legal principles:

  • The President approved and adopted the reasoning of Munby J (as he then was) in BBC v CAFCASS Legal [2007] EWHC 616 (Fam) and A v Ward [2010] EWHC 16 (Fam), decisions which also considered the question of what should be permitted to be reported about child care proceedings which had been dismissed (para 29).


  • As the proceedings concerning X, Y and Z had come to an end, the only statutory reporting restriction which applied was the Administration of Justice Act 1960, s.12. This meant that, unless an order was made under either the restraint or the disclosure jurisdictions, limiting or relaxing the statutory provisions, (see Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam)), Dr M could be publicly identified, but his report could not be published or its contents discussed (paras 29, 32, 70).


  • Those jurisdictions require consideration of the competing Convention rights engaged and they must be exercised in accordance with the principles set out in Re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47.

The decision:

  • Because the Judge had grounds (other than the contents of Dr. M’s report) for his decisions (1) to permit Coventry City Council to withdraw the care proceedings and (2) to order it to pay part of the parents’ (publicly funded) costs, his criticism of Dr M, in circumstances where he had not heard him give evidence, was “unnecessary” (paras 63 to 68). However, as those criticisms had, in fact, been made they had to be taken into account when applying the above principles.


  • There were two arguments in favour of exercising the restraint jurisdiction to prohibit Dr M’s name being disclosed. These were (1) that Bellamy HHJ had retained Dr M’s anonymity in his public judgments partly because he had not heard him give evidence and (2) that anonymity is desirable to encourage doctors to act as expert witnesses in Children Act proceedings and they will be deterred from doing so if they are publicly vilified (para 72).


  •  In respect of the first consideration, it was not necessary to exercise the restraint jurisdiction if the disclosure jurisdiction were exercised to permit Dr M’s report (redacted to protect the anonymity of the family) to be published and discussed. Without the report, there could be “no proper debate” (para 73). Although the President considered the questions of Dr M’s anonymity and the disclosure of his report in turn, it is clear that his decisions were linked. He observed that if Dr M were to be named, then it was appropriate that he should be allowed to defend his work, out of fairness, and because otherwise there could be no proper debate (para 69, 88).


  • It was this ability to inform debate, including dispelling myths about the Family Justice System, which tipped the balance against the second consideration and in favour of Mr Morgan’s Article 10 rights (para 74-82). The evidence given by Prof. Stephenson for the Royal College of Paediatrics had set out the professional risks arising from unfounded complaints faced by medical professionals dealing with child abuse cases. He gave evidence about the reluctance of medical professionals to be involved in child protection work. A shortage of experts was clearly a concern and the President used this judgment to encourage experts to undertake this sort of work, because “where work is properly done and the methodology is professionally sound paediatricians have nothing to fear from the courts.”


  • It is apparent throughout this judgment that the President of the Family Division is concerned to achieve greater transparency of the Family Justice System (without compromising the privacy of any child involved in proceedings) in order to facilitate debate. However, it was equally clear that greater transparency is aimed at bringing about balanced debate, not “tendentious” reporting (see paras 76, 80). For example, having considered Mr Morgan’s submissions in support of his application, he said: “I was greatly heartened to read that if and insofar as Dr M wished to defend himself, he would do so with Mr Morgan’s ‘fullest reporting assistance if needed’. This, to my mind, went a long way to answering the questions which formed in my mind as the argument progressed, namely ‘will there be a true debate?’ and ‘what is the forum?’” (para 37). The President warned against unbalanced reporting which, if it occurs, is likely to deter further openness (para 97).

Future practice 

This judgment is of importance not only because of what the President of the Family Division decided on the facts of this particular case, which everyone accepted were somewhat unusual, but also because of what he said about what should be the future practice for identifying experts in children proceedings and the disclosure of their reports. He would “like to see a practice develop, in which expert reports would be routinely disclosed, and the media able to comment both on the report and on the use to which they were put in the proceedings. This would mean that the views of the judge on the expert evidence would also be disclosed” (para 94). 

It therefore appears that in cases where the media seeks to permission to publish such normally private information, it will be pushing at an open door, except in cases where the child has refused to engage in the process without a guarantee of complete confidentiality or where identifying the expert or disclosing his report risks identifying the child. 

Kate Wilson 


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