Abbasi & Anor v Newcastle Upon Tyne Hospitals NHS Foundation Trust [2023] EWCA Civ 331 is an appeal judgment, which arises from the challenge by two sets of parents to continuing reporting restriction orders (RROs) that were made during separate proceedings about their children in relation to their end of life care. The RROs have endured after their poorly children both passed on and the court cases concluded. The parents wished to be able to talk about their experiences, but were being prevented from doing so by the continuing RROs. These orders had been made to prevent the identification of staff at the hospital, at a time of high emotion. In other high profile cases involving end of life care of children, protests outside hospitals have caused fear and disruption to staff, patients and their families, and seeking such reporting restriction orders has become more commonplace as a way of managing these issues.

The decision isn’t just relevant for end of life cases. It holds broader potential relevance for other sorts of family court cases where there is an issue about reporting restrictions or publication, given the increasing interest in open justice across the spectrum of the family court’s work. This is so even though most family proceedings are heard in private and (at least where children are concerned) will typically be the subject of statutory reporting restrictions – the same issues arise albeit from a different statutory starting point. This post explores that potential broader application.

The original decision was made by the President of the Family Division Sir Andrew MacFarlane (see Abbasi & Anor v Newcastle upon Tyne Hospitals NHS Foundation Trust [2021] EWHC 1699 (Fam), [2022] 1 FLR 348). In that judgment the President rejected the parents’ applications to discharge the injunctions and left these in place. He had some pretty strong words about the decision of his predecessor Sir James Munby in a case called A v. Ward [2010] EWHC 16 Fam; [2010] 1 FLR 1497. In Ward, Munby J had said that anonymity should not be afforded to a class of individuals in the absence of “compelling reasons”. The (current) President said:

‘Standing back and looking at the issue as it is presented now, in 2021, the time has come to draw a line under A v Ward insofar as it purported to establish that anonymity is not to be afforded to a class of professionals unless there are compelling reasons for doing so. The approach in law is that set out by Lord Steyn in Re S and in respect of the requirement for ‘compelling reasons’ the judgment in A v Ward must be regarded as per incuriam and should not be followed. In accordance with Re S, there should be no default position, or requirement for ‘compelling reasons’, in such cases. Any such application should turn on its own facts, including the overall context, where that is made out, as to the significant negative impact that the unrestricted and general identification of treating clinicians and staff may generate.’

Not only that, the President was heavily influenced by evidence of various eminent medical professionals said to show ‘the potential for there to be a highly negative impact on individuals, and upon the staff collectively, in the event that the parents’ stories are taken up and given prominence in social and/or mainstream media’, and considered that the more stringent approach to class claims in Ward was now outdated. Where Sir James in 2014 had said that

‘One can sympathise with conscientious and caring professionals who cannot understand why they should be at risk of harassment and vilification for only doing their job – and a job, moreover, where participation in the forensic process is not, as it were, part of the ‘job specification’ as in the case of social workers and expert witnesses. But the fact is that in an increasingly clamorous and decreasingly deferential society there are many people in many different professions who, however much they might wish it were otherwise, and however much one may deplore the fact, have to put up with the harassment and vilification with which the Internet in particular and the other media to a lesser extent are awash.’

Sir Andrew’s riposte had been this:

‘Why should the law tolerate and support a situation in which conscientious and caring professionals, who have not been found to be at fault in any manner, are at risk of harassment and vilification simply for doing their job? In my view the law should not do so, and it is wrong that the law should require those for whom the protection of anonymity is sought in a case such as this to have to establish ‘compelling reasons’ before the court can provide that protection.’

The disapproval of Ward is of broader relevance, because it is not only in end of life cases or in respect of medical professionals that anonymity is claimed – and indeed Ward didn’t relate to medical professionals at all, it related to social workers. There has been a long rumbling debate about the expectation of anonymity on the part of certain classes of professionals operating within the family court (predominantly social workers). The Ward ‘compelling reasons’ was ported into the 2014 guidance published by Sir James Munby relating to the publication of judgments:

• ‘Where a judgment relates to matters set out in Schedule 1 or 2 below and a written judgment already exists in a publishable form or the judge has already ordered that the judgment be transcribed, the starting point is that permission should be given for the judgment to be published unless there are compelling reasons why the judgment should not be published…
• Public authorities and expert witnesses should be named in the judgment approved for publication, unless there are compelling reasons why they should not be so named…
• Anonymity in the judgment as published should not normally extend beyond protecting the privacy of the children and adults who are the subject of the proceedings and other members of their families, unless there are compelling reasons to do so.’

Social workers, it was made clear, could not expect anonymity as a class. In subsequent practice however, when judgments were published individual social workers were often anonymised (even by Sir James) because of the tendency for undue focus to be directed towards hapless frontline social workers when management failure or systemic issues were to blame. Children’s Guardians, to whom such issues did not apply in quite the same way, continued by and large to be identified routinely on the rare occasion that judgments were published, and lawyers and judges are invariably named. As recent criticism of the social work profession by the Prime Minister reminds us, social workers are often the subject of strong and very public criticism, some of it unjustifiably harsh, and this has meant that they have felt vulnerable.

The President’s Reporting Pilot that is currently running in three family courts adopts a standard ‘transparency order’ which (subject to adjustments to suit the needs of the particular case) affords anonymity to not only frontline social workers but also to Cafcass guardians and report writers. Arguably this approach is neither consistent with prior practice or principle, but it is no doubt a piece of pragmatism that enabled the pilot to get off the ground. The transparency order template was drawn against the backdrop of these long rumbling debates about the protection of individual social workers and in the shadow of the long awaited appeal decision in Abbasi. The President’s decision in Abbasi was based upon a raft of impressive sounding evidence about actual harm and difficulties that had arisen in other similar cases, an evidence base which is notably better than that the hypothetical worries and non-specific anecdotes usually relied upon when seeking anonymity for social workers as members of that profession, but even so the Abbasi first instance decision had seemed to reflect a shift in the tide away from an emphasis on transparency that made it rather harder to argue that the caution against class claims in Ward was an important principle to maintain’.

So what does the Court of Appeal say about this?

The Court of Appeal went back to the case of Re S [2004] UKHL 47; [2005] 1 AC 593, which the President relied upon in indicating that Ward should no longer be followed. Re S is House of Lords authority, and sets out the approach a court must take when required to weigh up competing Article 8 and 10 claims. The first of four propositions is that neither article has any precedence over the other ‘as such’. The Court of Appeal reviewed a number of well known cases where senior courts had carried or considered out such exercises.

At paragraph 77 Lord Burnett says,

‘All of these cases demonstrate the high value attached to freedom of speech in our domestic common law order which is reflected in article 10 of the Convention. The use of the language of the need for “compelling” evidence to curtail free speech reflects that importance recognised in domestic authority and Strasbourg caselaw.’

He went on to say,

‘The absence of hierarchical primacy between articles 8 and 10 shows that there is no separate legal test arising from the use of the word “compelling” in discussion of the balancing exercise. Rather, the practical realities of the balance in such cases will be that evidence of a compelling nature is needed to curtail the legitimate exercise of free speech. That explains the use of the term “as such” in Lord Steyn’s formulation in Re S at [17] and the emphasis he gave to it’

The judgment spells out the legitimate purposes of the orders having been made in the first place:

‘The RROs were concerned with the integrity of proceedings, the welfare of the children in question and the wider immediate impact on the staff concerned in the cases and on the operation of the hospitals in circumstances where tensions were high. Experience suggested that social media could explode with vituperation and some people would translate their strongly held views into inappropriate behaviour.’

The Court of Appeal effectively reinstates Ward, whilst also acknowledging the obvious truth that some scenarios will give rise to the sort of compelling evidence that justifies imposing a restriction – here, end of life cases around and shortly after the time of the litigation, treatment and death. But such serious restrictions are only likely to be justified after consideration of the specifics, and only on a time limited basis.

Article 10 – how much detail is required?

As regards the approach to those who seek to exercise their Article 10 rights, the President had ‘laid considerable weight on his view that there was a ‘lack of any specificity’ regarding the substance of the allegations that the parents wished to make, or the identity of those they wished to name when doing so’, though he had ‘recognised in terms that there was no requirement on the parents to tell the court what they wanted to say’.

In any event there was not a lack of specificity as had been suggested.

The Court of Appeal said that,

‘Clearly, the more information a court has when balancing rights, the easier it is to undertake an intensive scrutiny on each side to conduct the ultimate balancing test. The President was not suggesting that before relying on article 10 a person was required to provide copy to the court or to get pre-approval for publication. The point travels no further than that if a person comes to court and speaks in general terms of article 10 rights when there are powerful qualified rights on the other side of the balance, the article 10 rights may not weigh very heavily.’

This is useful because it is not uncommon for those who seek permission to publish reports relating to family proceedings to be asked for more and then more details of the proposed contents of a publication – in effect for copy approval, and this judgment confirms that copy approval is not a requirement, but also endorses the common sense reality that the more detail that is given about a wish to publish or to tell a story the easier it will be for the court to appreciate the strength of the Article 10 rights that are engaged.

What falls within Article 8?

Importantly, the court observed that ‘Many of the reasons advanced in support of the continuation of the RROs [did] not bear on the article 8 rights of the NHS staff.’

The court here was referring to arguments relating to staff morale and recruitment, which had clearly influenced the President. These are familiar arguments to many family lawyers: here they were deployed by the health trusts, but they are more commonly deployed by local authorities who seek anonymity for their social workers or the authority itself. Quite properly, the Court of Appeal pointed out that whatever these arguments are, they are nothing to do with Article 8 or Article 10 and should not be weighed in the balance. That isn’t to say that evidence of a risk of harm to an individual social worker (perhaps a threat, or a particular vulnerability) might not give rise to Article 8 arguments, but a generic ‘this will make things difficult for our profession or institution’ argument has no place on the scales in a competition between Article 8 and 10.

There is also an interesting discussion about the ‘unusual’ nature of the (so-say Article 8) risks in question:

‘The circumstances in which Article 8 is being relied upon are rather different from the usual, because they concern a risk of behaviour that may result in a lack of respect for the private life of NHS staff; and a risk that results not directly from what is planned by the parents in these cases, or the mainstream media if they were to take up the stories, but the uncertain behaviour of others.’

This ‘third party actor’ risk was said to be unusual because it involves an uncertain consequence rather than a known, measurable outcome, and depends upon the actions of people not involved in the litigation (I’m not sure how unusual this really is to be honest). The Court of Appeal struggled to find any helpful case law to help it work out how to carry out the balancing exercise:

‘In so far as Article 8 is engaged on one side of the balance there must be a careful analysis of the realities of the risk. We were shown no Strasbourg authority establishing generally how to balance the future risk of an interference with Article 8 against a concrete interference with the right to free speech; still less how to balance the right to free speech against an indirect and speculative interference with Article 8 rights not arising from the immediate exercise of the right to free speech itself. It is difficult to construct a hard-edged rule, as there is when considering unqualified rights, because whatever approach is adopted, assuming that the risk is real and not entirely speculative, the court will be required to undertake a balance.’

The court drew by analogy on the approach of courts in Article 3 (prohibition on torture) cases, which ‘makes clear that the evaluation of risk in that context requires an objective assessment and a significant threshold’, and concluded that they should adopt the approach set out by Peter Jackson LJ in Re F (A Child) (Placement Order: Proportionality) [2018] EWCA Civ 2761; [2019] 1 FLR 779, namely that:

‘…there must be… an intense focus on the type of risk that is involved, how likely it is to happen, and what the likely consequences might then be. Only by carrying out this exercise is it possible to know what weight to give to the risks before setting them alongside other relevant factors.’

The President’s view was that ‘the detailed and substantial case for protecting staff anonymity comfortably outweighed the parents’ basic assertion of their right to freedom of expression. The outcome of the balancing exercise was therefore plain to see and did not require an intense focus.’

By contrast, the Court of Appeal took the view that this was not correct, and that perhaps this intense focus might have brought to light the fact that much of the evidence presented did not bear on article 8 at all.

The actual risks contended for were summarised by the Court of Appeal:

‘It is a striking feature of the evidence supplied by the Trusts to resist the applications of the parents that it contains nothing specific about those they seek to protect. The risk, as we have identified, is of a social media reaction from third parties who might vilify individuals and lead to their harassment or physical peril. The right relied upon is a right to be protected from personal or possibly physical attack with its consequences on personal and private life.

There is also the underlying concern about the parents criticising the professional judgment of those involved and thus damaging their professional reputations.’

Reputation

On that latter point, the judgment contains a useful reminder that Article 8 cannot be waved around as a shield against potential damage to reputation – unless that criticism reaches the threshold identified in the Strasbourg caselaw as bringing such damage under the auspices of Article 8….namely that “the publication in question had constituted such a serious interference with his private life as to undermine his personal integrity”. If that threshold is not crossed the remedy is a defamation action.

In this case, in the absence of any individualised information, there was ‘no basis to conclude that the parents’ proposed discussion of the events surrounding their children’s cases would reach the required threshold.’

Generic class claims and ‘systemic issues’

There was no individualised evidence, the case was presented as a class claim of a ‘generic’ nature.

Given that there was no evidence of any actual harm or harassment to date, and after a review of the coverage of the cases to date, the continuation of the orders was not justified, even if it had been justified at the outset – the Article 8 rights as at the date of the appellate decision carried limited weight, whilst the rights of the parents had real force.

Dealing with the issues around potential systemic impact – the Court of Appeal took a principled approach, reminding itself that higher courts had previously dealt with the issue:

‘The effect of the decision in these cases to continue the indefinite injunctions against the world has, in effect, created a generic class of anonymisation which endures after the end of proceedings and which is divorced from the individual circumstances of the cases or the individuals involved.

In analogous circumstances the House of Lords in Re S at [20] emphatically held that it is not for the courts “except in the most compelling circumstances” to create new exceptions to the principles of open justice’

That refers to the passage in Re S where Lord Steyn said this:

‘Given the number of statutory exceptions, it needs to be said clearly and unambiguously that the court has no power to create by process of analogy, except in the most compelling circumstances, further exceptions to the principles of open justice.’

So, said the Court of Appeal, ‘In recognising that the court might do so in exceptional circumstances Lord Steyn recognised that the court would have jurisdiction, but that it should refrain from exercising that jurisdiction; and in that sense had no power to do so.’

The Court of Appeal is not throwing the baby out with the bath water here:

‘The courts will be astute to protect from harm individuals caught up in litigation when it is appropriate to do so. In appropriate circumstances that protection will include the use of injunctions to mitigate the risk of future harm. The civil and criminal law both provide protection from various aspects of online attack, some preventive and other to provide a remedy for legal wrongs. To that extent nobody is obliged simply to ‘put up with’ abuse.’

‘However’ said the Lord Burnett,

‘the courts cannot shut down legitimate debate save when the rights of those affected by that debate, or put differently, the adverse consequences, are of such strength as to outweigh the right to free expression…

No Strasbourg authority was cited … to support the proposition that in Convention terms a right to freedom of expression could be curtailed because of the sort of systemic concerns identified in the evidence and submissions before the President and us….The core concerns advanced before the President were that naming health care professionals might undermine morale, make it more difficult to recruit into the relevant speciality and increase pressure on staff and hospitals. We are aware of no Strasbourg case which has come close to allowing concerns about morale, recruitment or general well-being of health staff to provide a justification for curtailing the right to free expression about individual experiences whilst being cared for, or on matters of general public interest. It would be a strong thing for public debate to be curtailed in these circumstances and, in line with established domestic authority … the domestic courts should not run ahead of Strasbourg in finding a principle in the Convention which has not emerged in Strasbourg.’

Covering all bases, the court concluded that even if these matters had fallen to considered in the balance, they were not capable of justifying interference with the Article 10 rights of the parents.

Jurisdiction

The final point of broader relevance is this:

There was a difficult technical issue about jurisdiction raised in Abbasi at first instance, and it also featured on the appeal – the issue centring around what power the court had to make the orders, to continue the orders or to interfere with them. It’s not necessary to wade through the arguments put forward, only to note that the Court of Appeal resolved the issues by stating emphatically that the jurisdiction to make RROs in end-of-life cases was well established and fell under the Parens Patriae inherent jurisdiction of the court, and the court’s powers and duties under the HRA 1998 – and was not dependent on the specifics of the rules of court.

The court also concluded that,

‘There is, moreover, no need for distinct causes of action to be identified to enable the court to make appropriate orders, including RROs…the Convention rights of those affected by the proceedings must be considered and, seized of the proceedings, the court may make such orders as are just and convenient under the inherent jurisdiction and section 37 of the Senior Courts Act 1981 . In particular, it may make such orders as it considers necessary to protect the integrity of the proceedings themselves and the administration of justice…

Furthermore, the High Court had jurisdiction to entertain an application to set aside the RROs made earlier, not only by virtue of the explicit terms of the orders but also, as in the BBC case, on the basis of an application from a person with a proper interest founded on a change in circumstances. ’

So, no difficulty with the High Court making RROs in the context of existing family proceedings where appropriate, even if there would have been no freestanding cause of action in the absence of those proceedings. Nor is there any difficulty with the High Court being asked by an interested party to review such orders.

Conclusion

As we consider the response of the Court of Appeal to the somewhat impassioned judgment at first instance, I note that in rejecting the applications, the President had stressed that,

‘all of the authoritative material relied upon [relating to class anonymity] emanated from Sir James Munby sitting at first instance, or in guidance as President. No authority has been produced to indicate that the approach taken in this line of cases has either been endorsed by the Court of Appeal or followed by other judges of the Division.’

By this judgment, the Court of Appeal has provided the endorsement of the approach in Ward that was said to be lacking. All in all, a helpful judgment which clarifies (or reaffirms) a number of points from an open justice perspective – as long as it isn’t appealed to the Supreme Court!