No.FD13P02299
Neutral Citation Number: [2013] EWHC 4043 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Thursday, 12th December 2013

Before:

MR JUSTICE HOLMAN
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Re TM

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MISS F. PATERSON appeared on behalf of the NHS Trust.

MISS M. CAREW appeared on behalf of the Guardian.

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J U D G M E N T
MR JUSTICE HOLMAN:

1	The purpose of these few words is solely to explain why I am imposing temporarily what has just been described as a blanket injunction on any reporting whatsoever - whether in a newspaper, by broadcast, or in any form of web-based communication - of the existence of these proceedings or anything that has taken place in court today.  I do so because that is, of course, a very strong and grave restriction on the Convention right of freedom of expression which underpins the democratic rights of us all.  These proceedings were listed for hearing in public, and every single word of them today has taken place in public, with journalists present in the court room.  I am now delivering this short judgment in public, but this judgment, like everything else that has been said today, will also be the subject of the same temporary blanket restraint.  

2	The justification for that arises out of the sensitive and difficult circumstances with which I am currently faced.  This is an application by an NHS Trust for the consent or approbation of the court to certain proposed medical treatment of a seven-year-old child.  The child was born with multiple medical problems, which it is not necessary to elaborate in this judgment.  She has, as a result, very considerable  mental and physical developmental delay.  She has received a great deal of help and treatment throughout her life from the hospital of the NHS Trust.  It is pleasing to record that until very recently there has been a good working relationship between the staff at the hospital and the treating doctors and the parents, and in particular with the mother of the child, for it is with her mother that she lives.  

3	About ten days ago, tension arose in that relationship because there was some disagreement between the parents (and in particular, the mother) and the treating doctors as to the next step in the treatment that this child urgently needs.  As a result, the mother has not in fact been permitted to revisit the hospital in the last ten days or so (although I am confident that the hospital will readily relax any embargo or exclusion, provided they are satisfied as to the safety and wellbeing of their staff and other patients).  This has had a number of unfortunate effects.  Perhaps most unfortunately of all, it means that this very needy child has not seen her mother, with whom she is closely bonded, for about ten days now.  It means that there has been a delay in the hospital being able to move to the next stage of the desired treatment.  It means that last week, in order to overcome the lack of consent from either or both parents, the NHS Trust commenced the present proceedings. 

4	An interim order was made by Mostyn J at an avowedly without notice hearing on 3 December 2013.  That gave a best interests declaration as to some temporary forms of treatment, and fixed here, today, as the place and date for substantive hearing.  Although the order did not of itself make any express reference to service upon the parents, it is self-evident and rudimentary that in a situation such as this the key respondents to the proceedings are indeed the parents of the child concerned.  I do not wish to say too much about it, at any rate today, but it seems to have emerged that there has been no real attempt at engaging personally with either parent during the last eight or nine days.  Some documents were certainly posted to the addresses of the parents, but only so recently that, on the available evidence, all that can be said of the documents sent to the mother is that they were put through the letter box of her address yesterday.  There is indeed some uncertainty even as to the reliable address of the father. 

5	I have been very concerned throughout today at the complete absence from the courtroom of either parent or any representative on their behalves.  It is very sad indeed that there has been this breakdown, which I hope is only temporary, between the parents and the hospital concerned, and I am extremely anxious that every possible step is taken to seek to repair the damage.  There is a local authority social worker who knows the parents well, and steps are being taken, as I understand it, to see if that social worker can directly visit and engage with the parents.  

6	There is a real risk here that if I conclude today's hearing with some final judgment and decision, that may serve only to deepen, rather than heal, the difficulties that currently arise.  It is not difficult to imagine that a parent, who already feels in some state of disagreement or even conflict with a hospital, may feel all the more aggrieved if he or she learns that some legal proceedings have taken place, as it were, behind their back.  It is desperately important that as soon as reasonably possible the relationship between the mother and the child herself resumes, and desperately important, if at all possible, that the advised medical treatment moves forward consensually rather than as a result of some court order from the outside.  

7	Because I am not able to be satisfied that either parent has been appropriately served, it seems to me that I have really no alternative but to adjourn this hearing.  The treating doctor, Dr J C FRCS, has given extremely careful, measured, clear and sensitive evidence today.  He has made clear that there is no serious risk of harm to the child if there is a delay of a few days in moving to the next stage of treatment, however much they might have wished to have done so now or even before today.  So this is not a situation of such urgency that a grave risk to the child would override considerations even of justice to a parent.  

8	For those reasons, I am clear that I must adjourn this case part-heard to next Tuesday, which has been identified as the only available clear court day next week.  The reason why I make the blanket injunction against the press really arises very obviously out of the facts that I have just described.  I wish to make plain that I, as much as any judge, and perhaps more than many, am very committed indeed to open justice, particularly in this type of case.  The press are very welcome in the court room; and, so far as I am concerned, provided the identity of a child and his or her immediate family is protected, they are normally very welcome fully to report anything and everything that is said in the courtroom.  But it is obvious that in the current situation it could be little short of catastrophic - when I am not sure that either (or both) parents are even properly aware of these proceedings - if either parent were to turn on their wireless or open their newspaper this evening or tomorrow morning or over the weekend and read something there which revealed to them (however anonymised it might be) that some public proceedings had taken place in relation to their child in a courtroom.  That clearly could have a devastating effect on relationships between the parents and the hospital, with a severe knock-on, damaging effect on the relationship even between the parents and their child.  

9	So for those reasons and very exceptionally and, in my view, permissibly, as falling within section 12(2)(b) of the Human Rights Act 1998, I do make a blanket injunction, in the terms already drafted and announced, to prohibit any reporting of any kind in any form of media or website of the existence of these proceedings or anything that has happened today.  That injunction will last only during the short period of the adjournment.  I have every intention of continuing next Tuesday on this case, part-heard, in public, just as I have today.  If, as I sincerely hope, between now and then there is a resolution between the parents and the NHS Trust, and indeed if the very treatment itself has already taken place, then there will still be a short hearing at which I will give a public explanation of the essence of this case and the evidence I have heard today.