Public Law
July 2023

This case further considers the media’s push for more transparency within the family justice system. The family court has to consider the balance between openness and accountability and safeguarding the welfare of those the family court seeks to protect.

Background: The application was brought by three media organisations for the release of various documents relating to care proceedings. The proceedings related to Finley Boden, a young child who was killed by his parents on 24 December 2020.

Finley and his sibling, child A, were initially subject to an interim care order and placed with their maternal grandparents. A further hearing took place on 1 October 2020 and the children were returned to their parents. It was determined that the children should transition back to the full-time care of the parents within 8 weeks and a final hearing was fixed for January 2021.

Unfortunately, on 24 December 2020, Finley was murdered by his parents and they were convicted of his murder on the 14 April 2023. Following Finley’s death, the care proceedings of child A were reallocated to High Court level and Morgan J made a Reporting Restriction Order (RRO) on the 20 May 2022.

Unsurprisingly there has been a great deal of media interest in the trial and in understanding the circumstances by which the children were returned to the care of the parents. The media organisations sought disclosure of the ruling made on 1 October 2020, supporting documents and reports which were presented to the court.

Lieven J considered the law and leading cases within this area, citing at para [17] the judgment of Swinton-Thomas LJ in Re EC (Disclosure of Material) [1996] 2 FLR 725, in which the court set out ten points for a judge to consider when conducting the balancing exercise in deciding whether to order disclosure. Lieven J also considered the need to balance the competing matters under the Human Rights Act 1998, namely Article 8 (right to privacy and a private life) against Article 10 (right to freedom of the press). This issue has been considered in Tickle v Griffiths [2021] EWHC 3365.

None of the parties in principle resisted the application for disclosure of documents sought by the press, subject to the protection of Child A and his/her carer’s privacy. The court favoured the Article 10 side of the matter, stating that there is significant, and legitimate, public interest in understanding the circumstances of Finley’s death.

“It is important that the public have sufficient information to understand the difficult decisions, with competing considerations, that have to be made in cases such as this. The release of the documents sought allows informed press and public consideration of the roles of the various agencies involved, the LA, Cafcass and the Courts, and the various matters that were taken into account before the decisions were made.”

The court also considered whether the names of the Magistrates and the Legal Adviser should be allowed to be published. There is requirement of public accountability and openness which is required by Judges. Lieven J considered that Lay Justices are judges and are making very important decision, like in this case, sending the children back home. The was no legal argument that their names should not be in the public domain the same way as judges would be. When concerned with the legal advisor the court held that a lay bench cannot make a decision unless a Legal Adviser exercises their functions. As such, the Legal Adviser is an integral, and legally required, part of the decision-making process.

The court therefore determined that both the Lay Magistrates and the Legal Adviser could be named by the press and left in place injunctions that protected the anonymity of the child and the child’s carers.

It is worth noting that in January 2023, Sir Andrew McFarlane, President of the Family Division, launched the Transparency Pilot which allows reporters to report what they see in the pilot courts. This is subject to strict rules about preserving the anonymity of the children, families, and some professionals involved in the cases. This has been. The pilot hopes to create a better relationship between the public and the family court and has been welcomed by the courts and professionals as a long overdue change.

This case brings up an interesting topic of whether biological families should be contacted by the local authority to satisfy that ‘nothing else will do,’ when considering the welfare of a child. As the reader will be aware, there is no presumption or legal right for a child to be brought up within their biological family.

The local authority brought an application to the High Court for a direction that it was under no obligation to notify members of the maternal and paternal families of twin boys or to assess them as prospective carers for the twins.

Background

The mother, a Muslim woman in her twenties gave birth to twins late 2022. The mother concealed her pregnancy from her family due to having the children outside of marriage. The mother’s relationship with the father was a short one and after the breakdown of the relationship she wished for the twins to be adopted as she felt unable to cope as a single parent.

The assigned social worker had asked the mother on multiple occasions to inform her family of the children’s birth, so the local authority could explore whether the children could be cared for within the family network. However, the mother remained consistent in her view that they should not be informed.

During the hearing, the mother explained to the court why she had concealed her pregnancy. In her evidence the mother made clear that she did not want any of her family to be made aware of the birth of the children as, within their community, having a child outside marriage was not something which was supposed to be done either religiously or culturally. The mother’s parents had not been aware of the pregnancy or of her relationship with the father. She explained that both of her parents, have heart conditions and was concerned by the effect the revelation of the children's birth would have upon them. The court accepted that the mother did not fear ‘honour-based’ violence from her family but feared she and other family members would face social ostracism in their community if the fact that she had given birth outside marriage became known.

Concerns were also raised by the guardian about who knew about the twin’s existence as the mother had asked for a contact session for herself and her sister. The guardian was concerned that there was a potential family member which the local authority could assess that hadn’t been explored. The mother clarified that she had only confided the existence of the children to one friend. Her sister who is still a child had overheard a discussion between the mother and this friend about the children. However, the mother had told the sister that it was her friend who was the parent of the children and not her.

The parties agreed that the approach the court should take to such applications was set out carefully by the Court of Appeal in Re A & Others [2020] EWCA Civ 41. In Re A & Others Jackson LJ considered the principles governing decisions (by local authorities as adoption agencies or by the court) as to whether a putative father or a relative should be informed of the existence of a child who might be adopted [89].

Following the live evidence heard by the court, the court gave the direction that the local authority is under no obligation to notify members of the maternal and paternal families of twin boys or to assess them. “This is a Muslim family of good standing in their community and active participants at their mosque. I therefore accept the mother’s evidence that the birth of children outside marriage would be contrary to what is expected by her family’s religious and cultural background.”

The court also considered the delay which had happened in the case. “There has been considerable delay in this case. Although it cannot be laid at any one source, the reality is that it has taken six months from this application being issued to reach a final hearing. That is too long, and I must reiterate the importance of applications such as these being identified by the court at an early stage as requiring urgency. Whilst I recognise, as Peter Jackson LJ identified in Re A, that in most cases delay should not be a predominant factor, the length of the delay that has occurred in this case would point towards dispensing with notification unless there was a were other significant factors pointing in the opposite direction. I do not consider such factors to exist here.”

This case highlights the issue of a child’s ability/competence to instruct a solicitor directly. “Does this child have the ability to instruct a solicitor in the particular circumstances of the case, having regard to their understanding?”. The court also considered the guidance in respect of children meeting judges and how a judge’s non-acceptance of an expert’s opinion should be addressed.

Background: During previous proceedings, the judge made care orders for A and his sister to remain in foster care with individual therapy. The court held that the father had alienated the children from their mother, that the children were at continued risk of emotional harm due to exposure to conflict and that they were beyond the parental control of the mother. During those proceedings the court held that A was not competent to instruct his own solicitor, as both children were heavily influenced by the father which was supported by expert evidence from a psychiatrist.

An application to discharge the care orders was made. During the current proceedings the Judge met with A and following this meeting the children’s solicitor made an application for separate representation of A. A was 14 years old at the time of the meeting. They argued that A was intelligent and had demonstrated an ability to understand the proceedings during his meeting with the Judge. The psychiatrist considered the question of competency again and reaffirmed the previous conclusion, however, the judge made an order allowing A to instruct his own solicitor in the proceedings. The mother appealed and this was supported by the local authority.

Lord Justice Peter Jackson concluded that the decision that A had the ability to instruct a solicitor directly was wrong. The judge had erred in her assessment of A during their meeting. Jackson LJ said “she made her own assessment of A’s ability to instruct in a manner that went well beyond the permissible use” of the meeting. Her Honour Judge McKinnell “made her own assessment” of the boy’s ability to instruct, describing him as “very mature and very insightful”. Family Procedure Rules and relevant case law make it clear that such an assessment should be based on broad consideration of all relevant factors and any opinions from solicitors and experts.

The Judge’s role was to adjudicate, not to assess. Her assessment of A was in conflict with the expert evidence provided to the court. Jackson LJ considered that the judge had overlooked how extreme and effective A’s father’s abuse had been. A was described by experts as “emotionally immature and lacking insight”.

The appeal was allowed and the order permitting separate representation was discharged. It is worth noting that the case will remain listed before Her Honour Judge McKinnell.