NOTE: A REPORTING RESTRICTION ORDER IS IN FORCE IN THIS CASE
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the terms of the reporting restriction order dated 14 January 2015 must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Case No: CA13C000119
Neutral Citation Number: [2015] EWHC 918 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

30 March 2015
Before :

THE HONOURABLE MR JUSTICE PETER JACKSON
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Between :

	
Cumbria County Council 	
Applicant	
	-and-
M
-and-
F
-and- 
The Children (by their Children’s Guardian)	1st Respondent

2nd Respondent

3rd Respondents	
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Jane Cross QC and Peter Rothery (instructed by Cumbria County Council) for the Applicant
Gillian Irving QC (instructed by Denby Co Solicitors) for the Mother
Karl Rowley QC and Jenny Scully (instructed by Livingstons Solicitors) for the Father
Janet Bazley QC and Carly Henley (instructed by Bendles Solicitors) for the Children’s Guardian
Richard Hunt for Cumbria Constabulary
Oliver Murphy for Guardian News and Media Ltd, Associated Newpapers Ltd, The BBC, CN Group, Independent Print Ltd, The Press Association, Telegraph Media Group and Times Newspapers Ltd

Judgment date 30 March 2015

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JUDGMENT
JUDGMENT : Publication of Judgment (No. 4)

Mr Justice Peter Jackson:

1.	A year ago, on 28 March 2014, I gave a judgment in these care proceedings.  In it, I made findings of fact about the circumstances surrounding the death of Poppi Worthington in December 2012.  The judgment also raised issues about the manner in which her death had been investigated for consideration by various responsible authorities.

2.	There have subsequently been a number of developments.  In October, the family proceedings ended with the making of orders in relation to the other children of the family.  In the same month a coroner’s inquest was held in circumstances that provoked criticism.   Steps now have been taken to secure a fresh inquest.  A Serious Case Review is also in progress.  Meanwhile, a reporting restriction order has been made in these family proceedings and remains in effect.  Its terms have been settled with the participation of the media and it is not suggested that the current version, dated 14 January 2015, should be disturbed.  Finally, on 16 March 2015, Cumbria Constabulary announced that criminal proceedings are not to be taken against either of Poppi’s parents.

3.	The hearing that has taken place today was fixed last December in order to consider once again whether the fact-finding judgment should be published.  The central reason why that had not so far occurred was the risk that publication might prejudice any criminal trial.  The very recent conclusion of the criminal investigations removes that concern.  If this were the only consideration, a decision that the judgment should now be published would have been likely.

4.	However, a further unforeseen factor has now come into play.  It arises from the criminal investigation itself.  The police have obtained expert advice about the medical investigations into Poppi’s death from three specialists.  Those opinions, not available at the time of the family court hearing, differ in a number of respects from the expert advice upon which the findings of fact were based.

5.	In the result, the court and all those participating at this hearing have now been notified that an application is on the point of being issued by Poppi’s father, seeking a reopening of the court's findings.  

6.	On the question of publication of the judgment, there is division between the parties:

(i)	The media, on whose behalf Ms Caoilfhionn Gallagher has presented written submissions, supplemented today by Mr Murphy, argues for publication.  It says that the matter is of the highest public interest, both as to the circumstances of the death and as to any agency failures.  There is a risk that an information vacuum will be filled with inaccurate speculation.  Moreover, continued non-publication would be likely to reignite concerns about "secret courts" and lack of transparency in the family justice system.

(ii)	The local authority argues that the judgment should be published now that a charging decision has been taken.  Even if the findings are reopened, there is a public interest in being informed about the process as it occurs.

(iii)	The mother supports publication, particularly as non-publication heightens speculation in an unhelpful way.

(iv) 	The father opposes publication at this point.  On his behalf, Mr Rowley QC argues that the evidence gathered during the father’s criminal investigation forms a credible basis for querying the court's findings.  He submits that it would be wrong, taking into account the father's rights, to publish the judgment ahead of a decision about whether the findings will or will not be reviewed.

(v)	On behalf of the children, the Children's Guardian opposes publication of the judgment at this time.  The children, whose future plans remain at a sensitive stage, would have to face a heavy bout of publicity now with the possibility of further, conflicting publicity at a later stage.

7.	The Practice Guidance issued by the President of the Family Division on 16 January 2014 and entitled "Transparency in the Family Courts: Publication of Judgments" [2014] 1 FLR 733 advises that fact-finding judgments in serious cases should be published unless there are compelling reasons to the contrary.  Quite apart from that guidance, this should in my view be the starting point in a case of this kind.  The public interest that the media contends for is very significant indeed.  As I have said elsewhere,  I am aware of the value of the media being able to describe events in real time as they unfold.  The risk of speculation replacing information is also a relevant consideration.

8.	I have nevertheless concluded that it would not be right for the fact-finding judgment to be published now.  The court retains control over the question of publication and must give due weight to the public interest, the interests of justice and the interests of the individual parties, not least those of the children concerned.  It would be wrong in my view to place in the public domain a judgment that would be likely to receive considerable publicity immediately before taking a decision on the question of whether that judgment should be reviewed.  To do so would be unfair to the father and contrary to the welfare of the children.  

9.	I well understand the desire of the media to carry out its role as fully as possible, and the frustration that is felt at the course of events in this case, in particular where one obstacle to publication is removed only to be replaced by another.  However, I am clear that a proper balancing of the rights of all concerned leads to the conclusion that the judgment cannot be published yet.  In saying this, I repeat my intention that it shall be published when it can be.

10.	With that in mind, I will next consider the question following the determination of the father's application for a review of the findings.  This will take place at a hearing before me on the first available date, namely 23 April.  At that hearing, I will also consider the question of whether, if the full judgment cannot then be published, parts of it might.  The parties and the media will discuss this in the meantime and inform the court of their position on that question.

11.	This ruling will be published on the Bailii website.