Practice and Procedure


PUBLISHED December 4, 2003

The inherent jurisdiction gave the court power to control the publication of a report commissioned by a local authority into a foster home. The local authority was entitled to publish unless a party who was entitled to the benefit of the inherent jurisdiction could make out a strong case against publication.Application by the local authority for an order under the court's inherent jurisdiction to publish a report commissioned by the local Area Child Protection Committee ('the ACPC') as a result of care proceedings taken by the local authority in respect of six children. Ms A was a foster mother to children with particular difficulties, most of the children she fostered she later adopted creating a large family of vulnerable young people who also came to live with her when they were already grown up. As a result of investigations into the management of some of the children then living with Ms A, on 26 November 1998 the police and social services entered her home, removed 12 children and encouraged the vulnerable adults then living there to leave. In December 1998 the ACPC commissioned a panel to inquire into the management of Ms A's home and to report to them. The inquiry followed the model of a Part 8 case review under Part 8 Working Together To Safeguard Children guidance issued by the Department of Health in 1999 but when studied this was not actually a Part 8 review. The issues were: (i) whether the local authority had the power to set up the inquiry in the form chosen; (ii) if the inquiry was intra vires, whether the court had the jurisdiction to stop publication of the report; and (iii) if the court had jurisdiction where the balance lay between the interests of those objecting to publication and the public interest in publication of the report. Ms A, the children and vulnerable adults presently living with Ms A objected to publication of the report as did the local NHS Trust.HELD: (1) The local authority did not act ultra vires. Under the Local Authority Social Services Act 1970 and the Local Government Act 1972, the local authority had power to set up the inquiry and commission the report. There was no obstacle to a local authority holding an inquiry in any form consistent with the appropriate guidance from the Department of Health and its overall statutory duties. Thus the decision to use the model of the Part 8 review, following the Working Together Guidance and adapting the inquiry to include the vulnerable adults was within the powers of the local authority. (2) The court had jurisdiction under the inherent jurisdiction to control publication of the report. The question was on behalf of whom could and should the inherent jurisdiction be exercised by the court. Following Butler v Freeman (1756) Amb. 302 and Wellesley v Duke of Beaufort (1827) 2 Russ 1, it was clear that the inherent jurisdiction could not be applied for the benefit of the local authority nor indeed for the benefit of Ms A, the Health Authority or the Adoption Agency. (3) Article 8European Convention on Human Rights was prayed in aid of Ms A's case but Art.8 and Art.10 could not stand alone. Each required to be applied in the context of existing recognised categories of cases. Unless the categories of protection of confidentiality or privacy were extended to the facts of Ms A's case, there appeared to be no grounds upon which the court could deal with her objections to the publication of the report as she was an adult and not under a disability. (4) As to whether the children were entitled to be protected from publication of the report, their welfare was of paramount importance (Yousef v Netherlands (2002) 3 FCR 577) but they also had rights (Marckx v Belgium (1979) 2 EHRR 330). The court had to have particular regard, under s.12(4) Human Rights Act 1998, to the importance of the Convention right to freedom of expression. The correct approach was to publish unless that publication would be so disadvantageous to the children that the court was driven to restrain publication in whole or in part. The balancing exercise came down in favour of protection of the children. (5) As to the vulnerable adults, the circumstances within which a court would exercise the inherent jurisdiction through the common law doctrine of necessity were not restricted to granting declarations in medical issues. (6) The court did not have jurisdiction to restrain the publication of the report in the interests of the NHS. The concern of the NHS trust was for the confidentiality of the medical reports and no claim in confidentiality had been made by the NHS trust. (7) The local authority was entitled to publish the report unless it could be clearly demonstrated that one or more of those parties objecting to its publication had made out a strong case that it should not be published. Ms A had been unable to establish such a case. However both the children in the home and the adults under a disability had made out a strong case. An injunction would be granted restraining publication.Order accordingly.

[2003] EWHC 2746 (Fam)