Rehearing of fact-finding hearing
Re W (Children)  EWCA Civ 113 is an appeal against aspects of a reporting restrictions order made by Peter Jackson J in relation to a renewed fact-finding hearing in relation to his earlier findings as to the death and injuries prior to death of Poppi Worthington. That re-hearing is published as F v Cumbria County Council and M (Fact-Finding No. 2)  EWHC 14 (Fam).
The Court of Appeal emphasises two aspects of the family courts’ jurisdiction in this area, and leave a third open for decision – perhaps – in later case:
(1) That the ‘default position’ (explained below) in children proceedings is publicity is the exception;
(2) That in any case it is a matter for the individual judge’s discretion as to whether publicity is permitted in children proceedings and whether there should be any relaxation of Administration of Justice Act 1960 s 12(1)(a);
(3) That the law, says McFarlane LJ, remains to be decided as to whether a child’s welfare is the paramount in a family courts’ decision on publicity.
Poppi’s death and the hearings before Peter Jackson J
The injuries suffered by Poppi were following her death were a fracture to her lower leg and acute injuries in the region of her anus; though it was thought, at the first hearing of care proceedings for her surviving siblings, that the original medical evidence had not achieved sufficient clarity so as to identify the cause of her death. Peter Jackson J therefore allowed a further hearing, on the father’s application, which he explained in F v Cumbria CC as follows:
' For the court to conduct a further hearing in a case of this kind is highly unusual. It does not do so simply because others hold different views to those of a witness whose evidence has been accepted. This further hearing took place because it was asserted that there was evidence capable of establishing an alternative plausible hypothesis for [Poppi’s] bleeding, namely that it may have come from congested blood vessels that had been affected by a viral infection. But even before the hearing began, that assertion had vanished like frost in May.'
The judge concluded, on the re-hearing as he had before: namely that the father had caused Poppi’s injuries. The care orders remained.
This note is prepared on the publicity aspects of the case alone. As it happens – care proceedings were finally issued by Cumbria County Council in October 2013 – the case parallels the introduction of the President’s Practice Guidance of 16 January 2014, Transparency in the family courts: Publicity of Judgments. Peter Jackson J traces the history of publication – or not – in F v Cumbria CC as follows:
' The fact-finding judgment in March 2014 was not published at that time for two reasons: the risk of prejudicing any criminal proceedings in respect of which a charging decision was awaited, and the need to protect these vulnerable children and their mother from public identification at a particularly sensitive stage in the planning for the children's future.
 In addition to the court's duty to determine whether or not a judgment should be published, there is a power that can be exercised by the High Court to make reporting restriction orders where necessary for the protection of individuals or the interests of justice. Such orders are made sparingly, bearing in mind the importance of free speech.
 On 27 June 2014, the local authority applied for a reporting restriction order in wide terms ... I made an order in narrower terms.
 In a further judgment given on 28 July 2014, I granted a request made by the media for its lawyers to be provided with a copy of the fact-finding judgment:  EWHC 2596 (Fam).
 After [a] coroner's inquest on 21 October 2014, I made a public statement on 27 October 2014 to explain why a reporting restriction order had been made and why it was not possible to publish the fact-finding judgment at that point. I acknowledged the concern that existed when the circumstances of a child's death were not made known: Poppi Worthington: Reasons for the current reporting restrictions …
 At the hearing in January 2015, I published a redacted note of the reasons given for the reporting restriction order in July 2014:  EWHC 4486.'
The reporting restrictions order
The publicity position before the Court of Appeal was summarised by McFarlane LJ at paras  and  as follows:
'(1) There should be no restriction upon naming both of Poppi and of her father, so that a forthcoming inquest and any criminal proceedings could be conducted with some degree of openness.
(2) No restriction was imposed upon naming the agencies that had been involved, with the exception of the hospital (this restriction was later lifted).
(3) The judge retained a restriction upon reporting the names of the surviving children and the mother, and the specific identification of the locality in which the family had lived.
(4) The judge's fact finding judgment remained confidential.
(5) The judge granted a later request made by the media for a senior lawyer in each of the media organisations to be provided with a copy of the fact finding judgment which could inform any application to be made to challenge the publicity order and its scope.'
In respect of the second fact-finding hearing – or re-hearing – the order remained (see para ) as follows:
'1. The judgment of the court of March 2014 shall be published at 12 noon on 23 November 2015 by being placed on the Bailii website in the edited form approved by the court.
2. Those lawyers for the media organisations who have given an undertaking in accordance with the order of 28 July 2014 are released from that undertaking.
3. The hearing commencing on 23 November 2015 shall be in private, but the judgment at the conclusion of that hearing shall be given in public.
4. The hearing commencing on 23 November 2015 shall take place in the presence of any accredited media representatives who wish to attend, and those that do:
4.1 shall be provided (in advance of the hearing commencing, if requested) with the medical reports, the minutes of experts meetings, and the schedules of agreement and disagreement;
4.2 shall be provided (in advance of the hearing commencing, if requested) with a copy of the full March 2014 judgment; and
4.3 may report daily on proceedings provided that (i) until the publication of the final judgment nothing is reported that might directly or indirectly indicate the nature of the findings which the court made in March 2014; and (ii) such reporting is subject to any further directions given by the court concerning what can and cannot be published if any issue arises during the course of the hearing.'
The appeal was allowed only to the extent of (1) removing reference to medical evidence as it occurred in the march 2014 judgment and (2) with tighter control of daily reporting (paras  and ). McFarlane LJ prefaced his remarks on daily reporting by admitting to 'substantial unease':
' Although I must confess to having a feeling of substantial unease at this degree of openness at the start of an unpredictable fact finding exercise, I am clear that it is simply not possible to hold that Jackson J is wrong in his analysis of the issue and his decision to grant media access to this degree. I am, however, sufficiently concerned about the laxity of the terms of the order dealing with daily reporting as it is currently drawn to stipulate that a further sub-paragraph be added to that part of the order in the following terms:
"… such reporting (whether by live reporting, Twitter or otherwise) may not take place until after the court proceedings have concluded on any given day, in order to ensure that the court has had an opportunity to consider whether any such additional directions are required."'
At a time when Dr Julie Doughty at Cardiff University has just taken up a research grant to deal with this very aspect of judicial anxiety (alongside the work of Dr Julia Brophy), it is worth recording how real are the grounds for McFarlane LJ’s concerns.
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